mclaughlin/united Food v. bennett/sos Ballot

SUPREME COURT OF ARIZONA
En Banc

JAMES McLAUGHLIN; UNITED FOOD & ) Arizona Supreme Court
COMMERCIAL WORKERS LOCAL 99, ) No. CV-10-0205-AP/EL
)
Plaintiffs/Appellees, ) Maricopa County
) Superior Court
v. ) No. CV2010-014942
)
KEN BENNETT, in his official )
capacity as Secretary of State )
for the State of Arizona; ) O P I N I O N
LEGISLATURE OF THE STATE OF )
ARIZONA; BOARD OF SUPERVISORS OF )
MARICOPA COUNTY, in its official )
capacity and on behalf of all )
counties in the State, )
)
Defendants/Appellants, )
)
and )
)
S.O.S. BALLOT - IN SUPPORT OF )
SCR 1026 COMMITTEE (ID )
201000023); and ARIZONA CHAMBER )
OF COMMERCE & INDUSTRY, )
)
Defendants-Intervenors. )
__________________________________)

Appeal from the Superior Court in Maricopa County
The Honorable Robert H. Oberbillig, Judge

AFFIRMED
________________________________________________________________

DAVIS, COWELL & BOWE, LLP San Francisco, CA
By Andrew J. Kahn
Elizabeth A. Lawrence

and

1
SNOW & CARPIO, P.L.C. Phoenix
By X. Alex Carpio
Attorneys for James McLaughlin and United Food & Drug Commercial
Workers Local 99 AFL-CIO

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Barbara A. Bailey, Assistant Attorney General
Carrie Jane Brennan, Assistant Attorney General
Attorneys for Ken Bennett

ARIZONA STATE LEGISLATURE Phoenix
By Gregrey G. Jernigan
By Peter A. Gentala
Attorneys for Arizona State Legislature

SCHARF-NORTON CENTER FOR CONSTITUTIONAL Phoenix
LITIGATION AT THE GOLDWATER INSTITUTE
By Clint Bolick
Gustavo E. Schneider
Carrie Ann Sitren
Attorneys for S.O.S. Ballot and Arizona Chamber of Commerce and
Industry
________________________________________________________________

P E L A N D E R, Justice

¶1 The question presented is whether Proposition 108, a

constitutional amendment referred to the people by the

legislature, complies with the separate amendment rule of

Article 21, Section 1 of the Arizona Constitution. The superior

court concluded that Proposition 108 violates that rule. On

August 3, 2010, we entered an order affirming the court’s

judgment. This opinion explains our reasoning.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 Senate Concurrent Resolution (“SCR”) 1026 was

introduced in early 2009, approved by both chambers of the

legislature, and transmitted in July 2009 to the Secretary of
2
State for placement on the November 2010 general election

ballot. This resolution, designated as Proposition 108, states:

To preserve and protect the fundamental right of
individuals to vote by secret ballot, where local,
state or federal law requires elections for public
offices or for ballot measures, or requires
designations or authorizations for employee
representation, the right of individuals to vote by
secret ballot shall be guaranteed.

The proposition, if passed, would add a new section 36 to

Article 2 of the Arizona Constitution, entitled “Right to Secret

Ballot.”

¶3 In May 2010, appellees (collectively, “McLaughlin”)

filed a special action, alleging Proposition 108 violates

Article 21, Section 1. After a hearing, the superior court

rejected the laches defense asserted by appellants S.O.S.

Ballot, Arizona Chamber of Commerce & Industry, and the Arizona

Legislature (collectively, “S.O.S. Ballot”), and ruled that the

provisions in Proposition 108 are not sufficiently interrelated

to constitute a single amendment. Accordingly, the court

enjoined the proposition’s placement on the upcoming ballot.

DISCUSSION

¶4 S.O.S. Ballot argues that the equitable doctrine of

laches bars McLaughlin’s challenge and that Proposition 108

complies with the separate amendment rule. We have jurisdiction

over this direct appeal pursuant to Arizona Revised Statutes

(“A.R.S.”) section 19-122(C) (Supp. 2009) and Arizona Rule of
3
Civil Appellate Procedure 8.1(h).

I. Laches

¶5 “In election matters, time is of the essence because

disputes concerning election and petition issues must be

initiated and resolved, allowing time for the preparation and

printing of [publicity pamphlets and] absentee voting ballots.”

Harris v. Purcell, 193 Ariz. 409, 412 ¶ 15, 973 P.2d 1166, 1169

(1998). “[T]he laches doctrine seeks to prevent dilatory

conduct and will bar a claim if a party’s unreasonable delay

prejudices the opposing party or the administration of justice.”

Lubin v. Thomas, 213 Ariz. 496, 497 ¶ 10, 144 P.3d 510, 511

(2006). We review a trial court’s decision on laches for abuse

of discretion. See Korte v. Bayless, 199 Ariz. 173, 174 ¶ 3, 16

P.3d 200, 201 (2001).

¶6 Although McLauglin filed this action ten months after

Proposition 108 was sent to the Secretary of State, “[d]elay

alone will not establish a laches defense.” League of Ariz.

Cities & Towns v. Martin, 219 Ariz. 556, 558 ¶ 6, 201 P.3d 517,

519 (2009). Even if we assume the delay was unreasonable,

S.O.S. Ballot has not established prejudice. McLaughlin filed

this action almost sixteen weeks before the printing deadline

for the Secretary of State’s publicity pamphlet and, therefore,

did not “deprive judges of the ability to fairly and reasonably

process and consider the issues.” Mathieu v. Mahoney, 174 Ariz.
4
456, 461, 851 P.2d 81, 86 (1993); see Korte, 199 Ariz. at 174-75

¶ 3, 16 P.3d at 201-02 (rejecting laches defense when

proposition challenge was filed almost eight weeks before the

deadline for mailing the publicity pamphlet, “allow[ing]

sufficient time to render a decision”). S.O.S. Ballot’s claim

of harm from the delayed filing is also undermined by its

request for an extended briefing schedule in superior court.

Because S.O.S. Ballot failed to show prejudice, and because

McLaughlin’s challenge raised substantial questions about

Proposition 108’s constitutionality, the court did not abuse its

discretion in refusing to apply laches to bar the claim.1

II. Separate Amendment Rule

¶7 The Arizona Constitution requires that “[i]f more than

one proposed amendment shall be submitted at any election, such

proposed amendments shall be submitted in such manner that the

                                                            
1
S.O.S. Ballot argues that had the complaint been filed
earlier and the proposition invalidated, the legislature could
have modified Proposition 108. See League of Ariz. Cities &
Towns, 219 Ariz. at 559 ¶ 10, 201 P.3d at 520. But S.O.S. Ballot
suffered no prejudice from the delay. That proponents of a
constitutional amendment may have limited time to correct a
violation of the separate amendment rule is not itself a ground
to find laches. Moreover, in response to our ruling, the
governor convened a special session on August 9 to consider this
issue, Governor’s Proclamation of August 5, 2010, culminating in
a new proposition that appears to contain a single amendment, see
SCR 1001, 49th Leg., 9th Spec. Sess. (2010) (“The right to vote
by secret ballot for employee representation is fundamental and
shall be guaranteed where local, state or federal law permits or
requires elections, designations or authorizations for employee
representation.”).
5
electors may vote for or against such proposed amendments

separately.” Ariz. Const. art. 21, § 1. “The clear import of

this provision is that voters must be allowed to express their

separate opinion as to each proposed constitutional amendment.”

Clean Elections Inst., Inc. v. Brewer, 209 Ariz. 241, 244 ¶ 7,

99 P.3d 570, 573 (2004); see Kerby v. Luhrs, 44 Ariz. 208, 214,

36 P.2d 549, 551 (1934) (recognizing the separate amendment rule

was “intended to prevent the pernicious practice of ‘log-

rolling’ in the submission of a constitutional amendment”). We

review de novo whether a proposition complies with the separate

amendment rule. See Ariz. Together v. Brewer, 214 Ariz. 118,

120 ¶ 2, 149 P.3d 742, 744 (2007).

¶8 In a separate amendment challenge, we examine whether

provisions of a proposed amendment “are sufficiently related to

a common purpose or principle that the proposal can be said to

‘constitute a consistent and workable whole on the general topic

embraced,’ that, ‘logically speaking, . . . should stand or fall

as a whole.’” Korte, 199 Ariz. at 176-77 ¶ 10, 16 P.3d at 203-

04 (quoting Kerby, 44 Ariz. at 221, 36 P.2d at 554). This test

requires us to analyze (1) whether a proposition’s provisions

are “topically related,” and (2) whether they are “sufficiently

interrelated so as to form a consistent and workable

proposition.” Ariz. Together, 214 Ariz. at 121 ¶ 6, 149 P.3d at

745 (internal citation and quotation marks omitted). A
6
proposition’s provisions, therefore, must “exhibit both

topicality and interrelatedness” to comply with the separate

amendment rule. Id.

¶9 Like the proposed amendment in Arizona Together,

Proposition 108 “can be divided into two provisions.” Id. at

121 ¶ 7, 149 P.3d at 745. The first provision guarantees the

right to vote by secret ballot in public elections; the second

establishes an individual right to a secret ballot election to

determine union representation. Both provisions pertain to

secret ballots and thus arguably are topically related, a point

McLaughlin does not seriously contest.

¶10 Even if we assume the provisions of Proposition 108

meet the topicality requirement, however, they must also be

sufficiently interrelated to comply with the separate amendment

rule. To assess whether the provisions are sufficiently

interrelated, we consider the following factors:

whether various provisions are facially related,
whether all the matters addressed by [the proposition]
concern a single section of the constitution, whether
the voters or the legislature historically has treated
the matters addressed as one subject, and whether the
various provisions are qualitatively similar in their
effect on either procedural or substantive law.

Id. at 122 ¶ 10, 149 P.2d at 746 (quoting Korte, 199 Ariz. at

177 ¶ 11, 16 P.3d at 204).2

                                                            
2
Arizona Together recognized that these factors are not
exclusive and may not all apply in a particular case, but they
7
¶11 S.O.S. Ballot contends Proposition 108’s provisions

are facially related because both public elections and union

representation elections are “government-administered and/or

supervised.” As S.O.S. Ballot observes, secret ballots may be

used in both contexts to protect individual voters from

coercion. But this common purpose primarily pertains to the

topicality requirement and does not establish a relationship

between public elections and union representation.

¶12 Relying heavily on Arizona Together, S.O.S. Ballot

attempts to analogize the “marriage” proposition in that case to

Proposition 108. We are not persuaded. The two provisions

involved in Arizona Together both concerned marriage and were

intended “to preserve and protect” that institution. 214 Ariz.

at 122 ¶ 11, 149 P.3d at 746. The provisions there were

facially related because the first adopted a definition of

marriage that the second made exclusive in terms of legal

status. Although S.O.S. Ballot argues that Proposition 108’s

two provisions establish a fundamental right to a “secret

ballot” for public elections and union representation, those

contexts are quite different and wholly unrelated. The type of

“facial relatedness” S.O.S. Ballot urges would reduce that

                                                                                                                                                                                               
 
can provide guidance for the Court in assessing whether
provisions are sufficiently interrelated. See 214 Ariz. at 122-
23 ¶¶ 10-17, 149 P.3d at 746-47.

8
component of the “interrelatedness” test to a mere repetition of

the topicality requirement. Contrary to S.O.S. Ballot’s

contention, significant “differences between the two contexts”

are pertinent to the inquiry on interrelatedness, even though

“complete overlap” of a proposition’s provisions is not

required.

¶13 Proposition 108 also does not “concern a single

section of the constitution.” Ariz. Together, 214 Ariz. at 122

¶ 10, 149 P.3d at 746 (quotation omitted). Secrecy of voting in

public elections is already protected in Article 7, Section 1 of

the Arizona Constitution, which since statehood has provided:

“All elections by the people shall be by ballot, or by such

other method as may be prescribed by law; [p]rovided, that

secrecy in voting shall be preserved.” If approved, Proposition

108 would be added as a new section in Article 2, resulting in

two separate but partly overlapping constitutional provisions

that both ensure secrecy in public elections.

¶14 As S.O.S Ballot acknowledges, public elections and

labor representation historically have not been linked together

in Arizona law. The Arizona Constitution addresses public

elections in Article 7, labor in Article 18, and the right to

work in Article 25. In addition, public elections are primarily

governed by state law, see A.R.S. Title 16 (elections and

electors), Title 19 (initiative, referendum, and recall), while
9
union elections are generally regulated by federal law, see

National Labor Relations Act, 29 U.S.C. §§ 151-69 (2006).

Although S.O.S. Ballot cites federal case law in an attempt to

link public elections and union representation, we will not

focus in a separate amendment challenge on the historical

treatment of such matters by the federal courts. Cf. Ariz.

Together, 214 Ariz. at 123 ¶ 14, 149 P.3d at 747 (declining to

consider the law of other states).

¶15 Moreover, the provisions in Proposition 108 are not

“qualitatively similar in their effect” on Arizona law. Id. at

122 ¶ 10, 149 P.3d at 746 (quotation omitted). Proposition 108

would substantively amend the Arizona Constitution in two

distinct ways. First, the proposition would create a new right

to vote exclusively by secret ballot for “designations or

authorizations for employee representation,” clearly the driving

motive for its proponents. See Senate Fact Sheet for SCR 1026,

49th Leg., 1st Reg. Sess. (2009) (discussing the proposed change

in federal labor law as the background for the resolution).

¶16 Second, Proposition 108 would not only affirm the

existing right to secrecy in public elections, but would also

amend Article 7, Section 1 by requiring the use of ballots in

public elections. Such an amendment would preclude the

legislature from adopting, pursuant to Article 7, Section 1,

“other [voting] method[s]” it might otherwise choose to
10
“prescribe[] by law,” provided secrecy is preserved. See People

ex rel. Deister v. Wintermute, 86 N.E. 818, 819 (N.Y. 1909)

(stating that New York’s constitutional provision, substantially

identical to Article 7, Section 1, was included “to enable the

substitution of voting machines, if found practicable”); see

also The Records of the Arizona Constitutional Convention of

1910, at 559-60 (John S. Goff ed., 1990) (documenting that

Arizona’s framers similarly fashioned Article 7, Section 1 to

preserve the state’s ability to adopt voting machines).

¶17 Proposition 108 is distinguishable from other

propositions we have found constitutional because the provisions

here do not constitute a comprehensive approach to a general

topic, see Korte, 199 Ariz. at 178 ¶ 15, 16 P.3d at 205, or a

“unified pronouncement” on a constitutional definition, Ariz.

Together, 214 Ariz. at 123 ¶ 17, 149 P.3d at 747. In contrast

to the marriage proposition in Arizona Together, the provisions

in Proposition 108 do not “clearly share a logical relationship”

or “derive meaning and effect from the mandates contained in the

other provision.” Id.; see id. at 128 ¶ 41, 149 P.3d at 752

(Hurwitz, J., concurring) (stating that interrelatedness

requires “a reasonable or logical relationship of the various

provisions with each other, and not simply with the broader

topic that they cover”); see also Slayton v. Shumway, 166 Ariz.

87, 92, 800 P.2d 590, 595 (1990) (finding the provisions of a
11
victims’ rights initiative, as interpreted by this Court, were

“a consistent and workable whole on the general topic of

victims’ rights and protections” (citation and internal

quotation marks omitted)).

¶18 Proposition 108’s provisions are not sufficiently

interrelated to satisfy the separate amendment rule. Therefore,

we hold that Proposition 108 violates Article 21, Section 1 of

the Arizona Constitution.3

CONCLUSION

¶19 For the reasons set forth above, the judgment of the

superior court is affirmed.

_____________________________________
A. John Pelander, Justice

CONCURRING:

_____________________________________
Rebecca White Berch, Chief Justice
                                                            
3
In Colorado and Nevada, similar initiatives were found to
violate the state’s single subject rule. Colorado Secretary of
State, Proposed Initiative #15, available at http://www.elections
.colorado.gov/Content/Documents/Initiatives/Title%20Board%20Filin
gs/2009-2010_Filings/Filings/Final.15.pdf (last visited Aug. 20,
2010); Colorado Initiative Title Setting Board, Proposed
Initiative #15 Results, available at http://www.elections.colo-
rado.gov/Content/Documents/Initiatives/Title%20Board%20Filings/20
09-2010_Filings/Results/results_15.pdf (last visited Aug. 20,
2010); Nev. State AFL-CIO v. SOS Ballot Nev., No. 09-OC-00562 1B
(Nev. 1st Dist. Feb. 25, 2010) (unpublished order). Cf. In re
Title, Ballot Title, and Submission Clause for 2009-2010 #24, 218
P.3d 350, 352 (Colo. 2009) (finding other initiatives securing
the right to secret ballots in employee representation elections
only did not violate the state’s single subject requirement).
12
_____________________________________
Andrew D. Hurwitz, Vice Chief Justice

_____________________________________
W. Scott Bales, Justice

_____________________________________
Michael D. Ryan, Justice (Retired)

H U R W I T Z, Vice Chief Justice, concurring

¶20 In Arizona Together v. Brewer, this Court “clear[ed]

out a considerable amount of our jurisprudential underbrush”

concerning Article 21, Section 1. 214 Ariz. 118, 127 ¶ 31, 149

P.3d 742, 751 (2007) (Hurwitz, J., concurring). Today’s opinion

faithfully applies Arizona Together. I write separately because,

as in Arizona Together, I am concerned with the Court’s focus on

four specific “objective factors” in determining whether a

proposed amendment violates Article 21, Section 1. See id. at

129 ¶ 43, 149 P.3d at 753.

I.

¶21 Because most proposed constitutional amendments will

involve one general topic, the critical question in separate

amendment cases is typically whether the proposed amendment’s

various provisions also are logically interrelated. Id. at 127-

13
28 ¶¶ 33-36, 149 P.3d at 751-52. Proposition 108’s proponents

urge that it meets this test because its provisions all relate to

voting by secret ballot. But, as the Court notes today, see ¶ 11

supra, although this may suffice to establish topicality, it does

not demonstrate interrelatedness. Were such the case, a

constitutional amendment affirming the use of secret ballots in

public elections and requiring this Court to elect the Chief

Justice in the same way would qualify as a single amendment.

¶22 Interrelatedness requires something more, a logical

relationship of the various provisions with each other, so that

they “constitute a consistent and workable whole on the general

topic” and “logically speaking, they should stand or fall as a

whole.” Kerby v. Luhrs, 44 Ariz. 208, 221, 36 P.2d 549, 554

(1934). Proposition 108 fails that test.

¶23 Proposition 108, as the Court notes, has two

independent provisions. The first affirms the guarantee of

secrecy in public elections already contained in Article 7,

Section 1, albeit without mentioning that such a guarantee

already exists. Perhaps inadvertently, this same provision also

seemingly abrogates the legislature’s existing power under

Article 7, Section 1 to authorize secret elections through

mechanisms other than ballots, such as voting machines. The

second provision in Proposition 108 creates an entirely new

14
constitutional right to vote by secret ballot in union

representation designations or authorizations.

¶24 The provision relating to public elections simply has

no effect on the one relating to union designations. The

efficacy of the provision relating to unions is neither enhanced

nor diminished by the provision relating to public elections.

Nor is Proposition 108 an integrated solution to a perceived

problem. This stands in stark contrast to Arizona Together, in

which one provision defined marriage and the other provision made

that definition exclusive in terms of legal status. Arizona

Together, 214 Ariz. at 123 ¶ 17, 149 P.3d at 747. That amendment

connected its provisions as a logical whole. Here, the whole is

nothing more than the bare sum of its unrelated parts. Neither

part operates in tandem with the other, see id. at 122 ¶ 12, 149

P.3d at 746, nor is there any logical reason why the amendment

should “stand or fall as a whole,” Kerby, 44 Ariz. at 221, 36

P.2d at 554. Proposition 108 thus clearly falls afoul of Article

21, Section 1, as the Court today concludes.

¶25 Once we have concluded that there is no logical

relationship between the two provisions in Proposition 108,

“[t]hat conclusion should end the analysis.” Arizona Together,

214 Ariz. at 128 ¶ 39, 149 P.3d at 752 (Hurwitz, J., concurring).

The four Arizona Together factors may sometimes confirm that

conclusion, but they should not drive it.
15
¶26 Moreover, I am concerned that the Court’s focus on the

four factors potentially adds unnecessary uncertainty to our

separate amendment analysis. Arizona Together’s first prong,

“facial relatedness,” originated in Kerby, in which we noted that

the proposed amendment had “at least three distinct propositions

. . . no two of which are necessarily required for a proper

operation of the third. On their face they have no direct

relation to each other.” Kerby, 44 Ariz. at 221-222, 36 P.2d at

554. “Facial relatedness” thus seems to me to be not one of four

separate factors to be used in evaluating whether a proposition

involves a single amendment, but rather the ultimate question to

be decided. Put differently, “facial relatedness” is merely

another way of stating that the various provisions “constitute a

consistent and workable whole on the general topic.” See id. at

221, 36 P.2d at 554.

¶27 The Court today concludes that Proposition 108 fails

the second prong in Arizona Together, as it does not involve the

same portion of the Constitution in which the right to secrecy in

public elections is treated, Article 7. This, however, is

largely a matter of drafting and fortuity – Proposition 108 would

seem to me to violate the separate amendment rule every bit as

much if its proponents had suggested amending Article 7 instead

of Article 2.

16
¶28 Similarly, the third Arizona Together inquiry – whether

the proposition’s various topics have been considered together

historically - is of less than compelling force. Our

Constitution and statutes have not dealt with how workers make

union representation decisions, presumably because that topic is,

as the Court notes in ¶ 14, the province of federal law.

Although the fact that topics have been treated together

historically provides some evidence of logical interrelatedness,

the converse is not necessarily true. When a proposed amendment

tries to analogize an existing constitutional right (in this

case, the right to secrecy in public elections) to a proposed new

right, the new right will almost never have been previously

considered together with the old one.

¶29 The last Arizona Together factor, whether the various

provisions are “qualitatively similar in their effect on the

law,” 214 Ariz. at 123 ¶ 16, 149 P.3d at 747, also strikes me as

being of questionable practical application in most cases, at

least in its original formulation. As the Court noted in Arizona

Together, id., the “qualitatively similar” factor came from

Slayton v. Shumway, 166 Ariz. 87, 800 P.2d 590 (1990). In

Slayton, the Court emphasized that the various provisions of a

proposed amendment relating to victims’ rights were similar

because they were all procedural in nature. See id. at 91-92,

800 P.2d at 594-95. Here, the provisions of Proposition 108 are
17
clearly both substantive and hence would easily pass through the

Slayton screen.

¶30 As it did in Arizona Together, 214 Ariz. at 123 ¶ 17,

149 P.3d at 747, the Court today interprets the “qualitatively

similar” factor in a somewhat broader fashion than in Slayton,

accurately concluding that although both provisions of

Proposition 108 are substantive in nature, see ¶¶ 15-16 supra,

they have very different – and unrelated - effects. But to me

this is simply another way of stating that these provisions

neither are logically related to each other nor constitute a

single constitutional amendment.

¶31 As noted above, I do not suggest that the factors set

forth in Arizona Together are not useful in an Article 21,

Section 1 analysis. But I worry about our recent focus on these

factors, some of which may be manipulated by shrewd drafters.

The four Arizona Together factors should not obscure – or

substitute for analysis of - the real question, which is whether

the various provisions of the proposed amendment, in addition to

concerning the same general topic, are also “all logically

related to each other” and form an integrated proposition

deserving a single up or down vote from the people. See Tilson

v. Mofford, 153 Ariz. 468, 472, 737 P.2d 1367, 1371 (1987).

18
II.

¶32 I add a final word. The separate amendment provision

in Article 21, Section 1 was “intended to prevent the pernicious

practice of ‘logrolling’ in the submission of a constitutional

amendment.” Kerby, 44 Ariz. at 214, 36 P.2d at 551. The danger

of logrolling is heightened when one provision of an amendment is

already in the Constitution. What is most troublesome about

Proposition 108 is that the Constitution has always protected

secrecy in voting in public elections. But as worded,

Proposition 108 suggests that a “no” vote, in addition to

rejecting the mandate for secret ballots in union representation

decisions, would also jeopardize the existing constitutional

guarantee of secrecy in public election voting. This strikes me

as precisely the sort of logrolling that Article 21, Section 7

was designed to avoid.

_____________________________________
Andrew D. Hurwitz, Vice Chief Justice

19