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Unformatted text preview: Understanding the Arizona Constitution 2 Understanding the Arizona Constitution Second Edition Toni McClory The University of Arizona Press Tucson 3 The University of Arizona Press © 2010 The Arizona Board of Regents All rights reserved. Published 2010 Printed in the United States of America 19 18 17 16 15 14 6 5 4 3 2 Cover designed by Miriam Fisher Library of Congress Cataloging-in-Publication Data McClory, Toni, 1948– Understanding the Arizona Constitution / Toni McClory. — 2nd ed.   p. cm. Includes bibliographical references and index. ISBN 978-0-8165-2944-5 (pbk. : alk. paper) 1. Constitutional law—Arizona. I. Title. KFA2802.M33 2010 342.79102—dc22 2010011368 This paper meets the requirements of ANSI/NISO Z39.48-1992 (Permanence of Paper). 4 Contents List of Illustrations Preface to the First Edition Preface to the Second Edition 1 The Arizona Constitutions The Importance of State Constitutions The Hierarchy of Laws The Many Sources of Arizona Law Resolving Conflicts between Laws Amending the Arizona Constitution Online Resources 2 Origins of the Arizona Constitution Arizona’s First Governments The Pre-territorial Period The Territorial Period: 1863 to 1912 The Push for Statehood Federal Opposition The Enabling Act of 1910 The Framers of the Arizona Constitution The Constitution of 1910 The Taft Veto and Its Aftermath Online Resources 3 The Legislative Branch Structure of the Legislature Legislative Elections Arizona’s Citizen Legislature 5 Organization of the Legislature Responsibilities of the Legislature The Lawmaking Process Fiscal Powers Government Oversight Powers Other Legislative Powers Online Resources 4 Direct Democracy The Theory of Direct Democracy How the Procedures Work The Initiative The Referendum Recall Online Resources 5 The Executive Branch Executive-Branch Structure A “Plural” Executive Branch Elected Officials The Governor’s Powers Administrative Powers Lawmaking Powers Judicial Powers Informal Powers Other Elected Officials The Secretary of State The Attorney General The State Treasurer The Superintendent of Public Instruction The State Mine Inspector Arizona Corporation Commissioners Online Resources 6 6 The Judicial Branch The Power of the Judicial Branch How Judges Make Law and Public Policy Judicial Review The Court System Arizona’s Major Courts The Relationship between State and Federal Courts How Judges Are Chosen, Retained, and Removed Judicial Selection and Retention before Merit Selection Removing Judges Judicial Procedures A Typical Felony Case A Typical Tort Case Online Resources 7 Local Government Why We Have Local Governments Counties What Counties Do How Counties Are Governed The Problem of County Governance Cities and Towns What Cities and Towns Do How Cities and Towns Are Governed District Governments School Districts Community College Districts Special Taxing Districts Online Resources Appendix: Taft’s Veto of Arizona Statehood 7 Glossary Notes Figure Credits Index 8 Illustrations Figures 1.1 The hierarchy of laws 1.2 Ways to amend the Arizona Constitution 1.3 State constitutional amendments by decade 2.1 Land acquired by the United States following the war with Mexico 2.2 The Territory of New Mexico 2.3 The territorial governor’s mansion 2.4 Arizona landownership 2.5 Delegates to the Arizona constitutional convention 2.6 Official seals 2.7 “The Blot” 2.8 President Taft signs Arizona’s statehood bill 3.1 Turnover in the Arizona legislature 3.2 A gerrymandering primer 3.3 Unopposed Arizona Senate races 3.4 Occupations of Arizona state legislators 3.5 Lengths of Arizona regular legislative sessions 3.6 A legislative salary proposition on the ballot 3.7 Bills introduced and passed 3.8 A typical bill 3.9 How bills die 3.10 Key stages in the Arizona lawmaking process 3.11 Sources of general fund revenues 3.12 General fund appropriations 3.13 Governor Evan Mecham 4.1 Constitutional initiative on the ballot 4.2 Prohibition supporters 4.3 Statutory initiative success rate 5.1 Voter turnout in Arizona general elections 9 5.2 Arizona women at the top 5.3 Governor George W. P. Hunt 5.4 Vetoes by modern Arizona governors 6.1 The Arizona court system 6.2 Arizona court caseloads 6.3 Types of cases filed in superior court 6.4 A judicial retention ballot 6.5 A judicial “report card” for a merit selection judge 6.6 Alternative paths to criminal conviction 7.1 Arizona’s fifteen counties 7.2 Relative populations of Arizona counties 7.3 Privately owned land by county 7.4 Structure of Arizona county governments 7.5 Arizona’s population growth 7.6 Population growth in Arizona’s largest cities Tables 3.1 Voter registration versus legislative seats 3.2 Voter response to legislative salary propositions 3.3 Standing committees in the Forty-Ninth Arizona Legislature 3.4 Voting rules for bill passage in the Arizona legislature 4.1 Summary of Arizona’s initiative and referendum procedures 4.2 Impeachment and recall contrasted 5.1 Party affiliations of top Arizona executive-branch officials 5.2 Arizona and U.S. election cycles 5.3 Salaries of Arizona’s elected executives 5.4 Arizona’s governors since statehood 6.1 Arizona jury requirements by case type 7.1 Major functions of county government 7.2 Primary responsibilities of elected county officials 10 Preface to the First Edition This book is addressed to three overlapping audiences: students, citizens, and government professionals. My original objective was more limited. I simply needed an introductory textbook for my Arizona Constitution students. In fact, I was in the midst of “beta testing” the first draft when colleagues from other disciplines began stopping me in the corridor. It was an election year, and they had questions about propositions on the ballot. Others, of a more activist bent, wanted to know how bills could be tracked, where statutes and administrative rules could be obtained, and so forth. It occurred to me that it wouldn’t be a major stretch to make the book equally useful to a second audience, the engaged citizen. So I expanded topics of special interest to voters and included references to online government resources. For the second time, I thought the task was done. Then I began to receive requests for the manuscript from an unexpected, third source: government professionals. Initially I balked. This was an introductory text, I insisted; it wasn’t intended for sophisticated audiences. I knew that the professional reader would require detailed citations and a more nuanced analysis—things that might be off-putting to the general reader. It seemed like an impossible marriage, until I considered endnotes: I could keep the body of the book firmly focused on my primary readership (students) and tell the rest of the story in the back pages. This strategy was later validated when my advanced students also began requesting citations and greater supporting detail. Thus, this book is addressed to the novice as well as to the aficionado; it seeks to be accessible and, at the same time, fairly rigorous. There are three other editorial emphases that should be explained. First, I have endeavored to blend topicality with history. Topicality is important because this is a profoundly dynamic subject. Teaching the Arizona Constitution is not like teaching geometry. The theorems continually change with new court rulings. And when the voters biennially amend the state constitution, they alter the very axioms. As a result, describing the state’s political processes is much like trying to hit a moving target. I have struggled to make the text as up-to-date as publication deadlines allow, but this is a losing game. Inevitably, there will be new developments. Along with topicality, this book heavily emphasizes 11 history. An entire chapter is devoted to the historical underpinnings of the state’s government, and linkages to the past are included throughout. This dual focus is not contradictory. Arizona’s current political processes cannot be fully understood without this historical backdrop. Second, throughout the book I emphasize the assumptions and political trade-offs that underlie the state’s institutions. To me, the interesting issue isn’t that Arizona has a part-time legislature, but why this is so, and what advantages and disadvantages flow from this arrangement. Accordingly, the book contains multiple pro-and-con passages designed to stimulate such critical thinking. In fact, many of the points emerged in classroom debates. Not surprisingly, we didn’t always agree as to whether a particular consequence belonged in the plus or the minus column. By including these arguments in the text, I am not trying to resolve these issues, but rather to similarly engage the reader. Arizona citizenship demands such an analytical stance; the voters must make similar evaluations whenever they vote on ballot measures. Finally, this book contains a more thorough treatment of the state’s judicial branch than is found in most other general texts. I defend this emphasis because the court’s role in shaping public policy in Arizona is both significant and poorly understood. Arizona’s appellate courts not only “make law”—periodically altering major public and private responsibilities—but also play an aggressive watchdog role, nullifying many high-profile acts of the legislature, other public officials, and the voters. I have discovered that even the judges’ more routine functions remain shrouded in mystery. Many people are confused by the difference between civil and criminal trials and wonder how they can reach different outcomes (e.g., the O. J. Simpson case). Others are puzzled about the ruckus over “tort reform.” While the latter may seem a bit arcane for an introductory text, Arizona voters have been asked to weigh in on the subject three times in recent years. I have drawn heavily on my dual careers (law and teaching) to try to present the courts’ role in a more complete, accurate, and accessible way. With such ambitious goals, I obviously required help. In fact, I’ve been sweating over these acknowledgments for quite a while. There is simply no way to thank all of the people, in government and out, who generously shared their knowledge and insights with me. But I would be remiss if I did not single out a few individuals both for their own contributions and as emblematic of others whom I do not name. At the top of my list is Anthony B. Ching, a constitutional scholar and Arizona’s first 12 solicitor general. Tony introduced me to the fascinating stories behind Arizona’s political institutions more than twenty years ago, and he remains a walking encyclopedia of the state’s legal history and lore. He can provide pertinent case references from memory (often with volume numbers) and is always willing to debate any new legal issue that arises. William Lamkin, along with my other colleagues at Glendale Community College, strongly encouraged this undertaking. Bill also read the manuscript, offered valuable suggestions, and helped me keep the presentation balanced. My POS 221 students at Glendale Community College and Arizona State University West (fall 1998 to spring 2000) deserve special thanks as well. They put up with an early version of the manuscript, caught embarrassing typos, offered many useful editorial suggestions, and warmly encouraged this project. To procure the raw data that underlie much of the text, I pestered overworked government staffers throughout the state. Belying the public’s perception of “bureaucrats,” these dedicated workers provided not only the requested data but also rich insights and firsthand recollections. I would especially like to acknowledge the secretary of state’s Elections Department, which promptly accommodated all my research requests, and Sandra Claiborne, whom I interrupted the most. Laurie Devine, photo archivist for the Arizona Department of Library, Archives, and Public Records; Robert P. Spindler, archivist for the Arizona State University libraries; and Jean McHale, public information specialist for the Arizona Supreme Court, also deserve special mention. All three helped procure the wonderful images that are reprinted in this book. And Patti Hartmann, Anne Keyl, and Sally Bennett patiently guided me through the final publication stages of this manuscript, along with others at the University of Arizona Press. Finally, special acknowledgment is owed to the members of my family. They provided far more than the support and forbearance that is typically acknowledged in these pages. Each of my three children also made substantial editorial contributions. Andrew interrupted his own studies to proofread the draft, fruitlessly lecture me on comma placement, and offer thoughtful reactions to the text. Bret, the family’s network administrator, facilitated my Internet research by keeping a sophisticated home system humming; he also provided expert assistance with graphics and other technical issues. Emily, the family Web maven, double-checked every URL in the textbook (including those endnotes!), organized the glossary, and provided other assistance with the preparation of the manuscript. However, the person most indispensable to this undertaking 13 has been my husband, Thomas McClory. Tom is a public lawyer who has served the state of Arizona for more than twenty years. I continually drew upon his legal expertise and remarkable memory of cases, people, and events. He generously assisted me with all aspects of this project, read the manuscript more times than the marriage contract decently warrants, and picked up the slack at home. I am disappointed that Tom’s professional commitments wouldn’t permit him to join me as coauthor (it would have been a much wittier text), but I have high hopes for the next edition. It is customary at this point for the author to assume full responsibility for all errors that may remain. I am, of course, solely responsible, but at least with respect to the family members, you know who I’ll be blaming. 14 Preface to the Second Edition It is hard to overstate the major constitutional changes that have occurred in the decade since the first edition of this book was written. Some have altered the very structure of state government itself; others have changed sensitive political processes such as redistricting. There have been two new governors, with yet another midterm succession. There have been dramatic veto battles, protracted budget wars, and other inter-branch conflicts that have generated landmark constitutional rulings from the courts. Legislator term limits kicked in for the first time, and some were already calling for their repeal. A major legislative scandal at the decade’s start raised troubling questions about the continued efficacy of part-time lawmaking. Reciprocally, the citizens’ Voter Protection Act added new rigidity to the governing process, limiting the legislature’s options in times of fiscal crisis. In fact, a total of sixty-four propositions reached the ballot, spawning heated controversies over same-sex marriage, immigration, and other hot-button social issues. No branch of government escaped change: Arizona’s courts were forced to significantly revise death penalty procedures, relinquishing sentencing power to juries. On the local level, record-breaking population growth triggered new constitutional battles over eminent domain, building moratoriums, and tax incentives for developers. For a second time, governance in Maricopa County reached crisis levels, with officials engaged in seemingly endless turf wars and lawsuits. Charter schools became major education providers, competing with traditional school districts for students. School funding battles continued, and controversial school voucher and tax credit programs led to major constitutional rulings. As the state struggled to cope with the worst fiscal crisis in its history, many were calling for fundamental constitutional change. It was evident that a second edition was overdue. As before, more people assisted my efforts than I can possibly acknowledge. I’m especially grateful to my students at Glendale Community College (admittedly a captive audience, but nonetheless generous with their feedback and support). In fact, some revisions are the direct result of my own teaching experience. In using this book in the classroom for nearly a decade, I discovered firsthand what did and didn’t work. I’m also grateful to my colleagues in academia, in government, and 15 on the bench who unstintingly shared their expertise. Special thanks are owed to the Honorable George Anagnost, Kathy Hedges, Donna Allen, Hannes Kvaran, and Oriol Vidal-Aparicio, who reviewed portions of the manuscript, and to Patti Hartmann and Barbara Yarrow at the University of Arizona Press, who encouraged my efforts throughout. I am especially grateful to Kirsteen Anderson, who provided expert editorial assistance and was also one of my shrewdest readers. Finally, the “in-house” assistants who contributed so much to the first edition have now grown up and moved on to creative pursuits of their own. Nonetheless, my daughter Emily interrupted her own law school studies to track down elusive citations for late-breaking cases. Two family members, however, were indispensable: My son Bret McClory took time from his busy schedule to create nearly all the charts in this edition. Data play a vital role in my account because they reveal how the constitution’s abstract language translates into real-world politics. Bret’s talents not only improved the book’s aesthetics, but made the numbers more meaningful. And his insights also prompted me to explore interpretations that I would have otherwise overlooked. Finally, there simply wouldn’t be a second edition without my husband, Thomas McClory. This is not the typical spouse acknowledgment, although I am deeply grateful for his exceptional patience and understanding. Rather, Tom’s substantive contributions can be found on virtually every page of the second edition. His knowledge of the inner workings of state government, acquired through longtime public service, is somewhat legendary in legal circles. In fact, Tom participated in many of the high-profile events narrated in this book. I am keenly aware that most authors do not have such ready access to a primary source! Finally, Tom extensively helped with research, citation-checking, proofreading, and all the less glamorous aspects of manuscript preparation, making this a collaboration in every sense of the word. May 2010 16 Understanding the Arizona Constitution 17 1 The Arizona Constitution When people hear the term constitution, they usually think only of the U.S. Constitution. In fact, all fifty states have their own written constitutions, and two are even older than the nation’s.1 Arizona’s constitution became effective in 1912 when Arizona was admitted as the forty-eighth state. Surprisingly, it is not one of the newer constitutions. This is because most older states have jettisoned their original constitutions in favor of newer models. (Louisiana holds the record here; it has had eleven different constitutions since statehood.) Although Arizona has remained loyal to its original charter, the state’s constitution has been repeatedly amended. All of this constitutional activity points to one inescapable conclusion: state constitutions do matter. Why? The Importance of State Constitutions Written constitutions serve at least two major purposes. First, they establish a government by formally defining its powers, responsibilities, and internal structure. For example, the basic organization of Arizona’s government is laid out in Article 3 of the state constitution. It declares: The powers of the government of the State of Arizona shall be divided into three separate departments, the Legislative, the Executive, and the Judicial; and, except as provided in this Constitution, such departments shall be separate and distinct, and no one of such departments shall exercise the powers prop...
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