Matt W Russ v. Jim irvin/betsey Bayless ( 2002 )


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  •                     SUPREME COURT OF ARIZONA
    En Banc
    MATT W. RUSS,                    )   Arizona Supreme Court
    )   No.
    Plaintiff/Appellant,   )
    )   Court of Appeals
    v.                               )   Division
    )   No.
    JIM IRVIN, individually BETSEY   )
    BAYLESS, in her capacity as      )   [         ]County
    Secretary of State of the State )    Superior Court
    of Arizona and APACHE COUNTY     )   No.
    BOARD OF SUPERVISORS, COCHISE    )
    COUNTY BOARD OF SUPERVISORS,     )
    COCONINO COUNTY BOARD OF         )
    SUPERVISORS, GILA COUNTY         )   O P I N I O N
    BOARD OF SUPERVISORS, GRAHAM     )
    COUNTY BOARD OF SUPERVISORS,     )
    GREENLEE COUNTY BOARD OF         )
    SUPERVISORS, LA PAZ COUNTY
    BOARD OF SUPERVISORS, MARICOPA
    COUNTY BOARD OF SUPERVISORS,
    MOHAVE COUNTY BOARD OF
    SUPERVISORS, NAVAJO COUNTY
    BOARD OF SUPERVISORS, PIMA
    COUNTY BOARD OF SUPERVISORS,
    PINAL COUNTY BOARD OF
    SUPERVISORS, SANTA CRUZ COUNTY
    BOARD OF SUPERVISORS, YAVAPAI
    COUNTY BOARD OF SUPERVISORS,
    YUMA COUNTY BOARD OF SUPERVISORS
    AND APACHE COUNTY
    RECORDER, COCHISE COUNTY
    RECORDER, COCONINO COUNTY
    RECORDER, GILA COUNTY RECORDER,
    GRAHAM COUNTY RECORDER, GREENLEE
    COUNTY RECORDER, LA PAZ COUNTY
    RECORDER, MARICOPA COUNTY
    RECORDER, MOHAVE COUNTY
    RECORDER, NAVAJO COUNTY
    RECORDER, PIMA COUNTY RECORDER,
    PINAL COUNTY RECORDER, SANTA
    CRUZ COUNTY RECORDER, YAVAPAI
    COUNTY RECORDER, YUMA COUNTY
    RECORDER,
    Defendants/Appellees.
    Appeal from the Superior Court of Maricopa County
    The Honorable Edward O. Burke, Judge
    AFFIRMED
    DALLIMORE        & BONNELL, LLP                                         Phoenix
    By          Suzanne M. Dallimore
    and         Nancy M. Bonnell
    Attorneys        for Plaintiff
    RICHARD M. ROMLEY, MARICOPA COUNTY ATTORNEY                Phoenix
    By   Stephen E. Silverman, Deputy County Attorney
    and Jill M. Kennedy, Deputy County Attorney
    Attorneys for Defendant Maricopa County, and for Defendant
    Officers of Apache, Cochise, Coconino, Gila, Graham, Greenlee,
    LaPaz, Mohave, Navajo, Pima, Pinal, Santa Cruz, Yavapai, and Yuma
    Counties
    R Y A N, Justice
    ¶1        In November 2000, the Legislature referred to Arizona
    voters Proposition 103, which proposed to amend Article XV, Section
    1 of the Arizona Constitution.              The proposed amendment sought to
    increase the number of Arizona Corporation Commissioners from three
    to five, increase the limit on terms a Commissioner may hold from
    one to two consecutive terms, and reduce the length of each term
    from       six   to   four   years.1    A   majority   of   voters   passed   the
    1
    The full text of the provision is as follows:
    Section 1. A. No member of the corporation
    commission shall hold that office for more
    than two consecutive terms.   No corporation
    commissioner may serve again in that office
    until out of office for one full term. Any
    person who serves one half or more of a term
    shall be considered to have served one term
    -2-
    proposition.
    ¶2          James     Irvin     was   elected    to       a    six-year        term    as
    Commissioner     in   November    1996.       Irvin’s     term     will       expire   on
    December 31, 2002, and he currently seeks office for a second term.
    Under the amended constitutional provision, that term will be for
    four years.      Therefore, if elected, Irvin would serve a total of
    ten years as Commissioner.
    ¶3          In   June   2002,    Matt   W.    Russ,   a       registered      voter    of
    Maricopa County who voted in favor of Proposition 103, challenged
    Irvin’s   candidacy,     seeking      injunctive      relief      and     a    writ    of
    mandamus.    Russ asserted that Proposition 103 established a limit
    of eight consecutive years of service, thereby precluding Irvin
    for purposes of this section.
    B. A corporation commission is hereby created
    to be composed of five persons who shall be
    elected at the general election, and whose
    term of office shall be four years, and who
    shall maintain their chief office at the state
    capital.     The two additional commission
    members shall be elected at the 2002 general
    election for initial two-year terms beginning
    on the first Monday in January, 2003.
    Thereafter, all terms shall be four-year
    terms.
    C.   In case of vacancy in the office, the
    governor shall appoint a commissioner to fill
    the vacancy. The appointed commissioner shall
    fill the vacancy until a commissioner shall be
    elected at a general election as provided by
    law, and shall qualify. The qualifications of
    commissioners may be prescribed by law.
    Ariz. Const. art. XV, § 1.
    -3-
    from seeking a second term as Commissioner.          The trial court
    granted Irvin’s motion to dismiss the complaint for failure to
    state a claim and denied Russ’s motion for summary judgment.      Russ
    appealed to this court, and we have jurisdiction under Arizona
    Revised Statutes (“A.R.S.”) section 16-351(A) (Supp. 2001).       In a
    previous order we affirmed the trial court, stating a written
    decision would follow.    This is that decision.
    ¶4        Russ contends that the plain language and intent of the
    Constitution limits an Arizona Corporation Commissioner to no more
    than eight years in office.       He asserts that in examining the
    provision as a whole, the reduction of the length of the term to
    four years and the limit on the number of consecutive terms to two
    reflects an intent to make the total length of service eight years.
    ¶5        “If the language [of a Constitutional provision] is clear
    and unambiguous . . . judicial construction is neither necessary
    nor proper.”    Jett v. City of Tucson, 
    180 Ariz. 115
    , 119, 
    882 P.2d 426
    , 430 (1994) (citation omitted).          The provision’s language
    clearly shows that the Legislature intended only to limit the
    number of terms.   The Legislature could have expressly limited the
    number of consecutive years a Commissioner could hold office but
    chose not to.   Instead, the amendment unambiguously states that no
    Commissioner “shall hold that office for more than two consecutive
    terms.”   Ariz. Const. art. XV, § 1(A).
    ¶6        Additionally,    the   provision   contemplates   service   of
    -4-
    varying lengths.    The two additional Commissioners will only be
    able to serve six years - an initial two-year term and a second
    four-year term.    See Ariz. Const. art. XV, § 1(B).   The amendment
    also provides that Commissioners who serve less than half a term
    will not be considered to have served any term.     See Ariz. Const.
    art. XV, § 1(A).      Thus, as Irvin correctly points out, some
    Commissioners could serve more than eight years - one year and 364
    days, not counting as a term, and then two consecutive four-year
    terms. These different lengths of service further demonstrate that
    the Legislature intended only to limit the number of terms, not
    years.
    ¶7        Moreover, this issue has been addressed by an opinion of
    the attorney general.    The opinion concluded that the provision
    merely imposes on the Commissioners a two term limit, not a limit
    on the number of consecutive years.     Op. Ariz. Att’y Gen. I01-001.
    It states in part the following:
    This language imposes a two consecutive term
    limit on all Commissioners.      It does not
    expressly limit the number of consecutive
    years a person may serve, nor does it
    establish   different   requirements  for   a
    Commissioner who previously served a six-year
    term.   It establishes a limit based on the
    number of terms served, not the number of
    years.
    * * *
    The transition to Proposition 103 may result,
    for a limited time, in Commissioners reaching
    their two-term limit after serving anywhere
    from six to ten consecutive years. . . . These
    -5-
    differences naturally result from a limit
    based on the number of terms served, when the
    terms are for different lengths of time.
    
    Id. ¶8 Such opinions
    are advisory and not binding.                   Ruiz v.
    Hull,   
    191 Ariz. 441
    ,   449,   ¶    28,     
    957 P.2d 984
    ,   992   (1998).
    “However, the reasoned opinion of a state attorney general should
    be accorded respectful consideration.”                  
    Id. We agree with
    the
    reasoning in the opinion.        The amendment to Article XV, Section 1
    established a limit only on the number of terms, and its language
    allows for differences in the lengths of terms served.
    ¶9            Accordingly, we affirm the trial court’s dismissal of the
    complaint.
    Michael D. Ryan, Justice
    CONCURRING:
    Charles E. Jones, Chief Justice
    Ruth V. McGregor, Vice Chief Justice
    Stanley G. Feldman, Justice
    Rebecca White Berch, Justice
    -6-
    

Document Info

Filed Date: 8/8/2002

Precedential Status: Non-Precedential

Modified Date: 4/17/2021