                               IN THE
            ARIZONA COURT OF APPEALS
                            DIVISION ONE


  STEVE GALLARDO, an individual; LYDIA GUZMAN, an individual;
   MARCUS LARA, an individual; ROSE MARIE DURAN LOPEZ, an
         individual; RANDLOPH LUMM, an individual; and
                MARTIN QUEZADA, an individual,
                        Plaintiffs/Appellants,

                                  v.

 STATE OF ARIZONA, a body politic; HELEN PURCELL, in her official
capacity as Maricopa County Recorder; KAREN OSBORNE, in her official
capacity as Maricopa County Director of Elections; MARICOPA COUNTY
  BOARD OF SUPERVISORS; and DENNY BARNEY, STEVE CHUCRI,
ANDY KUNASEK, CLINT L. HICKMAN, and MARY ROSE WILCOX, in
   their official capacities as members of the Maricopa County Board of
                                  Supervisors,
                              Defendants/Appellees.

                        No. 1 CA-CV 14-0272A
                         FILED 07-23-2014


          Appeal from the Superior Court in Maricopa County
                         No. CV2013-017137
              The Honorable Randall H. Warner, Judge

                   REVERSED AND REMANDED
             GALLARDO et al. v. STATE OF ARIZONA et al.
                      Opinion of the Court

                                COUNSEL

Perkins Coie LLP, Phoenix
By Paul F. Eckstein, Jessica L. Everett-Garcia, D. Andrew Gaona and
Alexis E. Danneman

Lawyers’ Committee for Civil Rights Under Law, Washington, D.C.
By Robert A. Kengle and Rosa E. Zamora, Pro Hac Vice
Co-Counsel for Plaintiffs/Appellants

Arizona Attorney General’s Office, Phoenix
By Robert L. Ellman and David D. Weinzweig
Counsel for Defendant/Appellee State of Arizona




                                OPINION

Presiding Judge Michael J. Brown delivered the Opinion of the Court, in
which Judge Donn Kessler joined and Judge Randall M. Howe specially
concurred.


B R O W N, Judge:

¶1            In this opinion we address the constitutionality of a statute
that mandates adding two at-large positions to the boards of community
college districts located within counties of at least three million people.
For reasons explained below, we conclude the statute is a special law that
violates the Arizona Constitution.

                             BACKGROUND

¶2           Ten community college districts have been formed in
Arizona. Each district is governed by a local board consisting of five
members elected to six-year terms from five precincts within the district.
Ariz. Rev. Stat. (“A.R.S.”) § 15-1441(A). In April 2010, the legislature
amended A.R.S. § 15-1441(A) (“Amendment”) as follows:

      Beginning July 1, 2012, in addition to the governing board
      members who are elected from each of the five precincts in a
      community college district, a county with a population of at


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             GALLARDO et al. v. STATE OF ARIZONA et al.
                      Opinion of the Court

       least three million persons shall elect two additional
       governing members from the district at large.

A.R.S. § 15-1441(I). The Amendment thus mandated that for a “county”
with a population of more than three million, that county will elect two
additional board members and the terms of all seven members will be
four years. 1 With a population of approximately four million, only
Maricopa County falls within the scope of the Amendment. 2

¶3            Because the State of Arizona sought to obtain preclearance of
the Amendment from the Department of Justice under Section 5 of the
Voting Rights Act (“VRA”), the effective date was delayed. The United
States Supreme Court’s decision in Shelby County, Alabama v. Holder, 133
S.Ct. 2612, 2631 (2013), however, removed the State’s preclearance
obligation under the VRA and the Arizona Attorney General opined that
the next applicable election for the two at-large board members would be
the general election in 2014.

¶4           In December 2013, Appellants filed a complaint in the
superior court seeking a declaration that the Amendment is
unconstitutional under the provision of the Arizona Constitution that
prohibits enactment of local or special laws. Appellants also sought an
order enjoining the State and various public officials from implementing
the Amendment.

¶5           In support of their argument that the law is unconstitutional
because it would effectively apply only in Maricopa County, Appellants
submitted an uncontroverted expert disclosure report forecasting the
prospective growth of all fifteen Arizona counties. The report noted that
none of the twelve least populated counties is expected to reach a


1      Subsection C of A.R.S. § 15-1441 provides that after the first election
for a district, “each [board] member’s term is six years, except for a county
with a population of at least three million persons, beginning at the next
election after June 30, 2012, each member’s term is four years.”

2      Inexplicably, the legislature used the population of a county,
instead of a district, as the trigger point for application of the Amendment
even though the boundaries of a district and a county are not necessarily
coterminous. See A.R.S. § 15-1441(B) (“Where two or more counties
constitute a district, as many precincts shall be set up by the board of
supervisors in each county as the county is entitled to membership.”).


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                      Opinion of the Court

population of three million people in the next five hundred years. Of the
three remaining counties, Maricopa had a population of 3,817,117 in 2010,
and Pima and Pinal will likely not reach a population of three million
until the 22nd Century, and possibly never.

¶6             Following oral argument, the superior court “accept[ed] as
true that no county other than Maricopa is likely to have three million
people in the foreseeable future,” but nonetheless upheld the
constitutionality of the Amendment. The court reasoned that the
legislature may separately address the unique issues faced by Maricopa
County and that a class of one is acceptable “so long as the classification is
related to the statute’s legitimate purpose.” This timely appeal followed.

                               DISCUSSION

¶7           Appellants argue that the Amendment is an impermissible
special law in violation of the Arizona Constitution. Primarily, they
contend the population threshold creates a class of one, namely, Maricopa
County, and that no other county will enter the class in the foreseeable
future.

¶8             We review the constitutionality of a statute de novo. Town of
Gilbert v. Maricopa County, 213 Ariz. 241, 245, ¶ 11, 141 P.3d 416, 420 (2006).
We construe the statute to give it a reasonable meaning and apply a strong
presumption in favor of its constitutionality. Long v. Napolitano, 203 Ariz.
247, 254, ¶ 16, 53 P.3d 172, 179 (App. 2002). However, we “will not refrain
from declaring a legislative act an unconstitutional special or local law
when the facts so require.” Republic Inv. Fund I v. Town of Surprise, 166
Ariz. 143, 148, 800 P.2d 1251, 1256 (1990). “An act, even though general in
form, will be treated as a special act if that is its effect.” Id. (citing 2 N.
Singer, Sutherland Statutes & Statutory Construction § 40.02 at 233 (4th ed.
1986)); see also 2 E. McQuillan, The Law of Municipal Corporations § 4.50,
at 125 (3rd ed. 1988) (“Whether a statute is general or special depends on
its substance and practical operation, rather than on its title, form or
phraseology.”).

¶9            The Arizona Constitution provides that “[n]o local or special
laws shall be enacted” regarding, among other things, the “conduct of
elections.” Ariz. Const. Art. 4, Pt. 2, § 19(11). The special law provision
prohibits legislation that “unreasonably and arbitrarily discriminates in
favor of a person or class by granting them a special or exclusive
immunity, privilege, or franchise.” Republic Inv., 166 Ariz. at 148, 800 P.2d
at 1256 (quoting Ariz. Downs v. Ariz. Horsemen’s Found., 130 Ariz. 550, 557,

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             GALLARDO et al. v. STATE OF ARIZONA et al.
                      Opinion of the Court

637 P.2d 1053, 1060 (1981)). The policy underlying the special law
prohibition is “[f]ear of legislative favoritism[.]”           Petitioners for
Deannexation v. City of Goodyear, 160 Ariz. 467, 470, 773 P.2d 1026, 1029
(App. 1989). Indeed, “the framers acknowledged that specific prohibitions
against special laws were necessary and desirable.” Id. As explained by
our supreme court, the special law prohibition also “confine[s] the power
of the legislature to the enactment of general statutes conducive to the
welfare of the state as a whole, [] prevent[s] diversity of laws on the same
subject, [] secure[s] uniformity of law throughout the state as far as
possible” and “prevents the enlargement of the rights of [some] persons in
discrimination against others’ rights[.]” State Comp. Fund v. Symington, 174
Ariz. 188, 192, 848 P.2d 272, 277 (1993).

¶10           The special law prohibition does not necessarily bar the
legislature from enacting laws that confer privileges only on classes
defined by population; however, such laws must comply with the three-
part test adopted by our supreme court:

       Legislation does not violate the special law prohibition if (1)
       the classification is rationally related to a legitimate
       governmental objective, (2) the classification is legitimate,
       encompassing all members of the relevant class, and (3) the
       class is elastic, allowing members to move in and out of it.

Long, 203 Ariz. at 253, ¶ 14, 53 P.3d at 178 (citing Republic Inv., 166 Ariz. at
149, 800 P.2d at 1257). If a classification fails to satisfy any of the three
standards, it is unconstitutional. See Republic Inv., 166 Ariz. at 149, 800
P.2d at 1257; Town of Gilbert, 213 Ariz. at 246, ¶ 20, 141 P.3d at 421 (“All
three prongs of the test must be satisfied in order for the law to be
considered general.”). Because we conclude the Amendment violates the
third prong, requiring elasticity, we need not address the first two prongs
of the test.

¶11           A statute is “special” if its scope is limited to a particular
case and it “looks to no broader application in the future.” Republic Inv.,
166 Ariz. at 150, 800 P.2d at 1258 (internal quotations omitted). To satisfy
the elasticity requirement, a classification must be “open, not only to
admit entry of additional persons, places, or things attaining the requisite
characteristics, but also to enable others to exit the statute’s coverage
when they no longer have those characteristics.” Id. at 150, 800 P.2d at
1258. The number in the class is not determinative, and a statute is not
special simply because, at the time of enactment, only one entity will fall
within the class. See Long, 203 Ariz. at 258, ¶ 36, 53 P.3d at 1783 (“The

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             GALLARDO et al. v. STATE OF ARIZONA et al.
                      Opinion of the Court

legislature may construct a population-based classification that applies
only to one county at the time of enactment.”); Town of Gilbert, 213 Ariz. at
246, ¶ 20, 141 P.3d at 421 (same). As the number in the class decreases,
however, we are more likely to find the classification invalid. Republic
Inv., 166 Ariz. at 151, 800 P.2d at 1259.

¶12           “To decide whether a statute legitimately classifies, we will
consider the actual probability that others will come under the act’s
operation when the population changes.” Id. When the “prospect is only
theoretical, and not probable, we will find the act special or local in
nature.” Id. Therefore, the conditions that permit entry into the class
must “be not only possible, but reasonably probable, of attainment.” Id. at
150, 800 P.2d at 1258 (quoting with approval Petitioners for Deannexation,
160 Ariz. at 471-72, 773 P.2d at 1030-31 (noting that a classification must
“permit[] other individuals or entities to come within the class . . . within a
reasonable time, or if at all”)).

¶13            Here, the three million population threshold is not tethered
to a specific county; thus, the Amendment is not facially inelastic. The
uncontroverted evidence reflects, however, that even assuming a high rate
of growth, “the population [will not] reach [three] million until the end of
the 21st century in Pima County and [] after 2090 in Pinal County.”
Indeed, Appellants’ expert opined that, using a lower, more realistic
growth rate, neither Pima nor Pinal counties will reach three million until
the 22nd century, and perhaps never. 3 Moreover, none of the remaining
counties will reach the population threshold for at least five hundred
years. Because the likelihood that any county other than Maricopa will
reach a population of three million is merely theoretical, it is not
reasonably probable that any other community college districts will be
able to enter the class. We therefore conclude the Amendment is inelastic.
See Republic Inv., 166 Ariz. at 151, 800 P.2d at 1259; see also Haman v. Marsh,
467 N.W.2d 836, 849 (Neb. 1991) (citing Republic Inv., and explaining that
“[if] the prospect is merely theoretical, and not probable, the act is special
legislation. The conditions of entry into the class must not only be

3      The bill summaries for House Bill 2261 reflect that the legislature
was aware of the relevant census information in setting the population
threshold. See Ariz. H.B. Summary, 2010 Reg. Sess. H.B. 2261 (Feb. 2,
2010) (“According to the United States Census, Maricopa County is the
only county in Arizona with a population over three million persons.
Pima County has the next highest population at 843,746.”).



                                      6
             GALLARDO et al. v. STATE OF ARIZONA et al.
                      Opinion of the Court

possible, but reasonably probable of attainment.”); Sierra Club v. Dep’t of
Transp. of State of Hawai’i, 202 P.3d 1226, 1251 (Haw. 2009) (citing Republic
Inv. and Haman, and stating that “[t]hese cases teach that in determining
whether a law creates an illusory class depends not only on whether others
may theoretically enter the class, but on the ’actual probability’ that others
will enter the class in the future.”) (emphasis added).

¶14            This conclusion is consistent with cases from this court that
have addressed the “reasonable probability” issue within the elasticity
standard. In Town of Gilbert, we held that the population parameters
placed on legislation governing the formation of county island districts
constituted an impermissible special law because there was no probability
that any town, other than Gilbert, “would fall within the population-based
classifications of the legislation” within “the next fifteen to twenty years.”
213 Ariz. at 247, ¶ 22, 141 P.3d at 422. We explained that “the remote
possibility of only one other entity being able to enter the class in the next
nineteen years is insufficient to satisfy the third prong of elasticity.” Id. at
¶ 23. Likewise, we previously held that legislation prohibiting minors
from possessing firearms in public that applied only to “counties with
populations of more than five hundred thousand persons” constituted an
impermissible special law because no county, other than Maricopa and
Pima, would reach the population threshold “for more than ten years.” In
re Cesar R., 197 Ariz. 437, 440, ¶ 10, 4 P.3d 980, 983 (App. 1999); see also In
re Marxus B., 199 Ariz. 11, 14, ¶¶ 13-14, 13 P.3d 290, 293 (App. 2000)
(expressing agreement with the holding in In re Cesar R.).

¶15            The State cites Long for the proposition that no “temporal
limitation” need be applied when analyzing legislation’s elasticity. In that
case, a taxpayer challenged legislation creating and implementing the
Tourism and Sports Authority (“TSA”), contending, among other things,
that the legislation was an unconstitutional special law. 203 Ariz. at 251,
¶ 1, 53 P.3d at 176. The TSA legislation at issue applied to “any county
that has a population of more than two million persons.” Id. at 252, ¶ 6, 53
P.3d at 177. The taxpayer argued that the TSA legislation was inelastic
because no county other than Maricopa County could attain the
classification criteria. Id. at 258, ¶ 37, 53 P.3d at 183. Specifically, the
taxpayer argued that “even if other counties achieve the population
threshold, they can never enter the TSA classification because they could
not call the required election by August 1, 2000.” Id. We disagreed,
explaining that the population threshold was not tied to a specific date or
census and “the 2000 county election” served “as a triggering device for
the TSA legislation rather than as a criterion for class participation.” Id. at
258-59, ¶¶ 38, 41, 53 P.3d at 183-84. Thus, although we concluded that the

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                      Opinion of the Court

population classification used in the TSA legislation was sufficiently
elastic, we did not address the actual or reasonable probability that
another entity would enter the class. Id. at 260, ¶ 45, 53 P.3d at 185.
Therefore, Long does not provide guidance in this case for analyzing the
temporal limitations of the elasticity prong.4

¶16           Applying the governing principles our supreme court has
adopted regarding elasticity, we hold that the Amendment, which
essentially creates a unique election system for the board members of the
Maricopa County Community College District, 5 constitutes a special law
in violation of the Arizona Constitution.

¶17           In reaching this conclusion, we acknowledge the State’s
contention that no specific parameters exist for determining the likelihood
that potential members of a particular class will reach a specific
population threshold and that the legislature should not be required “to
guess at what is constitutional” when drafting statutes. Additional
guidance on the elasticity prong from our supreme court, identifying what
factors should be used to determine whether entry into a class is
reasonably probable of attainment, would be helpful in the appropriate
case. The absence of such guidance, however, does not permit us to
ignore the plain text of the constitutional prohibition against enactment of
special laws and the case law interpreting that clause. Since before
statehood, Arizona’s courts have followed the general principle that
conditions of a classification must be reasonably attainable. See Bravin v.

4      At oral argument on appeal, the State asserted that a reasonable
probability of admission to the class could be met without any temporal
limitation. It argued that even if another county could enter the class in
500 or even 1000 years, that would be sufficient. We reject that argument
as confusing possibility and probability. Given enough time, almost
anything is possible. The applicable standard for elasticity is “reasonable
probability.” Moreover, the State’s argument fails to recognize that the
conditions of the legislative classification must be reasonably attainable,
which necessarily includes a temporal component.

5       As noted above, the Amendment provides for the addition of two
at-large positions and also establishes that all seven board members will
serve four-year terms, as opposed to the six-year terms that apply to all
districts that are located in counties with a population under three million.
See supra ¶ 2.



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             GALLARDO et al. v. STATE OF ARIZONA et al.
                      Opinion of the Court

Mayor and Common Council, 4 Ariz. 83, 89-90, 33 P. 589 (1893) (explaining a
classification is elastic when the likelihood that another entity will meet
the conditions defining a particular class is “not only possible, but
reasonably probable, of attainment.”). Given that standard, together with
the uncontroverted evidence in this case reflecting that no other entity will
likely reach the three million population threshold for more than eighty-
five years, the probability that another entity will enter the class is
attenuated and theoretical.

¶18            Appellants request an award of attorneys’ fees under the
private attorney general doctrine, which is an equitable rule permitting
courts to award attorneys’ fees to parties who have vindicated a right that
“(1) benefits a large number of people; (2) requires private enforcement;
and (3) is of societal importance.” Dobson v. State, 233 Ariz. 119, 124, ¶ 18,
309 P.3d 1289, 1294 (2013) (quoting Arnold v. Ariz. Dep’t of Health Servs.,
160 Ariz. 593, 609, 775 P.2d 521, 537 (1989)). The State has not disputed
that a fee award would be appropriate if Appellants prevail. Because
Appellants have succeeded in showing that the Amendment violates the
Arizona Constitution, a fee award is appropriate. We therefore award
Appellants their reasonable attorneys’ fees incurred on appeal upon their
compliance with Arizona Rule of Civil Appellate Procedure 21.

                              CONCLUSION

¶19          For the foregoing reasons, we reverse the superior court’s
order and remand for further proceedings consistent with this opinion.



H O W E, J., Specially Concurring

¶20             I concur with the Majority’s conclusion that the Amendment
fails the elasticity prong of the special law analysis as set forth in Republic
Inv. Fund I v. Town of Surprise, 166 Ariz. 143, 149, 800 P.2d 1251, 1257
(1990). Even when a statutory classification is facially elastic, it
nevertheless may be operationally inelastic if the prospect that another
person or entity will enter the class “is only theoretical and not probable.”
Id. at 151, 800 P.2d at 1259. The evidence before the superior court was
that Pima and Pinal Counties—Arizona’s most populous counties after
Maricopa County—will not meet the statute’s three million population
threshold until the 22nd century, if ever. Under this circumstance, I agree




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                   Howe, J., Specially Concurring



that the statutory class is inelastic and therefore the Amendment is an
unconstitutional special law.

¶21           I write separately, however, to express concern about this
court’s interpretation of our supreme court’s “theoretical and not
probable” language from Republic. The language must be considered in
the context of the statute in that case. The statute established a class based
on a city or town’s population as of the date of a particular census. Id. at
147, 800 P.2d at 1255. The class was by definition inelastic because it
permitted no entrance or exit.

¶22            This court has been inconsistent with its interpretation of the
“theoretical and not probable” language. Relying on this language, this
court has held unconstitutional a statute that established a class defined
by a population threshold that would not be met for nineteen years, Town
of Gilbert v. Maricopa County, 213 Ariz. 241, 247 ¶ 23, 141 P.3d 416, 422
(App. 2006), as well as one that would not be met for ten years, In re Cesar,
197 Ariz. 437, 440 ¶ 9, 4 P.3d 980, 983 (App. 1999). 6 Relying on Republic’s
context, however, this court has upheld as a general law a statute that
established a two million county population threshold because it was not
tied to a particular census and “any county may seemingly enter the class
upon achieving the requisite population and may exit upon falling below
that level.” Long v. Napolitano, 203 Ariz. 247, 258 ¶ 38, 53 P.3d 172, 183
(App. 2002). Whether any other county’s population was projected to
reach the statutory threshold in any time frame was apparently not
considered.

¶23            Our inconsistent interpretations give the legislature no
guidance on the elasticity prong’s meaning. Establishing statutory
classifications requires line-drawing, which “is peculiarly a legislative task
and an unavoidable one.” Massachusetts Bd. Of Regents v. Murgia, 427 U.S.
307, 314 (1976). The legislature may enact a statute that applies to one
entity without being an unconstitutional special law, “if that entity is the


6      Interestingly, the courts’ discussion of the elasticity of the statutory
class was unnecessary in each case because the statutes in question failed
other prongs of the special law analysis. Town of Gilbert, 213 Ariz. at 246
¶ 17, 141 P.3d at 421 (statute did not encompass all members of the
relevant class); Cesar, 197 Ariz. at 439 ¶ 6, 4 P.3d at 982 (limiting statute’s
application to Maricopa and Pima Counties was irrational classification).


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                   Howe, J., Specially Concurring

only member of a legitimate class” and the class is elastic. Republic Inv.,
166 Ariz. at 150, 800 P.2d at 1258. But which interpretation of “elastic”
applies: the expansive interpretation of Long, or the cramped
interpretation of Town of Gilbert and Cesar? The legislature may have
established the three million population threshold in this case based on
our holding in Long. A more cautious legislature might have considered
Town of Gilbert and Cesar in making its classification. But each decision
remains good law, and the legislature is at sea in deciding which to
follow. Our decision today does not resolve this dilemma.

¶24           I agree with the Majority’s conclusion that the Amendment
is unconstitutional because its application is based on a population
threshold that the evidence shows may never be reached. But left
unaddressed today is what time frame the legislature may rely upon to
establish such a threshold. Although the legislature cannot gaze so far into
the future that a population threshold becomes merely a distant
expectation for succeeding generations, surely it cannot be constrained to
focus myopically only on next year‘s or the next decade’s population
projections. How far the legislature can look ahead, however, depends on
the meaning of the supreme court’s decision in Republic, and that is an
issue only the supreme court can resolve.




                                   :gsh




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