                              IN THE
             ARIZONA COURT OF APPEALS
                            DIVISION ONE


     ANDY BIGGS; ANDY TOBIN; NANCY BARTO; JUDY BURGES;
  CHESTER CRANDELL; GAIL GRIFFIN; AL MELVIN; KELLI WARD;
    STEVE YARBROUGH; KIMBERLY YEE; JOHN ALLEN; BRENDA
  BARTON; SONNY BORRELLI; PAUL BOYER; KAREN FANN; EDDIE
  FARNSWORTH; THOMAS FORESE; DAVID GOWAN; RICK GRAY;
   JOHN KAVANAGH; ADAM KWASMAN; DEBBIE LESKO; DAVID
   LIVINGSTON; PHIL LOVAS; J.D. MESNARD; DARIN MITCHELL;
STEVE MONTENEGRO; JUSTIN OLSON; WARREN PETERSEN; JUSTIN
 PIERCE; CARL SEEL; STEVE SMITH; DAVID STEVENS; BOB THORPE;
    KELLY TOWNSEND; MICHELLE UGENTI; JEANETTE DUBREIL;
             KATIE MILLER; TOM JENNEY, Petitioners,

                                  v.

 THE HONORABLE KATHERINE COOPER, Judge of the SUPERIOR
  COURT OF THE STATE OF ARIZONA, in and for the County of
             MARICOPA, Respondent Judge,

 JANICE K. BREWER, in her official capacity as Governor of Arizona;
THOMAS J. BETLACH, in his official capacity as Director of the Arizona
    Health Care Cost Containment System, Real Parties in Interest.

                        No. 1 CA-SA 14-0037
                         FILED 4-22-2014


Petition for Special Action from the Superior Court in Maricopa County
                           No. CV2013-011699
               The Honorable Katherine M. Cooper, Judge

  JURISDICTION ACCEPTED; RELIEF GRANTED IN PART AND
                      DENIED IN PART
                                  COUNSEL

Scharf-Norton Center for Constitutional Litigation at the Goldwater
Institute, Phoenix
By Clint Bolick, Kurt M. Altman, Christina Sandefur
Counsel for Petitioners

Fennemore Craig, P.C. Phoenix
By Patrick Irvine, Timothy J. Berg, Carrie Pixler Ryerson, Douglas C.
Northup
Counsel for Real Parties in Interest Governor Janice K. Brewer and Thomas J.
Betlach

Office of Governor Janice K. Brewer, Phoenix
By Joseph Sciarrotta, Jr.
Co-Counsel for Real Party in Interest Governor Janice K. Brewer



                                  OPINION

Acting Presiding Judge John C. Gemmill delivered the opinion of the
Court, in which Judge Randall M. Howe and Judge Peter B. Swann joined.


G E M M I L L, Judge:

¶1            Petitioners are thirty-six members of the Arizona Legislature
(“plaintiff legislators”), two constituents whose representatives voted
against the bill at issue (“plaintiff constituents”), and a taxpayer seeking to
bring suit pursuant to Arizona’s private attorney general statute
(“taxpayer Jenney”) (collectively “Plaintiffs”). Together, they sought to
enjoin enforcement and challenge the constitutionality of “Arizona’s
expanded Medicaid program” as set forth in Arizona Revised Statutes
(“A.R.S.”) sections 36-2901.08 and -2901.09. Real Parties in Interest are
Governor Janice K. Brewer, in her official capacity as Governor of Arizona
and Thomas J. Betlach, in his official capacity as Director of the Arizona
Health Care Cost Containment System (“AHCCCS”) (collectively
“Defendants”). Upon dismissal of Plaintiffs’ action for lack of standing,
Plaintiffs both appealed and filed this special action petition. For the
following reasons, we accept special action jurisdiction, dismiss Plaintiffs’
contemporaneous appeal as moot, grant relief from the trial court’s ruling
regarding standing of the plaintiff legislators, deny relief from the trial



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                         Opinion of the Court

court’s standing determination regarding plaintiff constituents and
taxpayer Jenney, and remand for further proceedings.

                             BACKGROUND

¶2             House Bill 2010 § 5 (“HB 2010”), which created A.R.S. § 36-
2901.08, was passed in both chambers of the Arizona legislature by a
simple majority vote and signed into law by the Governor in June 2013.
Section 36-2901.08, in relevant part, authorizes the director of AHCCCS to
“establish, administer and collect an assessment on hospital revenues,
discharges or bed days for the purpose of funding the nonfederal share of
the costs,” with several exceptions. A.R.S. § 36-2901.08(A). The nature of
this “assessment” is the foundation of Plaintiffs’ complaint; specifically,
Plaintiffs contend that the bill imposes a new tax on hospitals as a funding
mechanism for the expansion of Arizona’s Medicaid program.
Accordingly, Plaintiffs assert that the bill was subject to passage by a two-
thirds supermajority of each legislative chamber in accordance with
Article 9, Section 22 of the Arizona Constitution.

¶3            Defendants moved to dismiss Plaintiffs’ complaint for lack
of standing and because, in their view, subsection (D) of Article 9, Section
22 grants the legislature the sole authority to determine when a bill is
subject to passage by a two-thirds supermajority. The trial court adopted
Defendants’ arguments and dismissed the complaint. Plaintiffs filed this
special action asking this court to reverse the trial court and also to
consider addressing the merits of their complaint.

                   SPECIAL ACTION JURISDICTION

¶4             Accepting special action jurisdiction is highly discretionary
with the reviewing court. Randolph v. Groscost, 195 Ariz. 423, 425, ¶ 6, 989
P.2d 751, 753 (1999). Arizona courts generally hold that special action
jurisdiction is appropriate in matters of statewide importance, where the
issues presented are purely legal questions or, as here, the issues
presented “turn on interpreting Arizona’s Constitution.” Dobson v. State
ex rel. Comm’n on Appellate Court Appointments, 233 Ariz. 119, 121, ¶ 7, 309
P.3d 1289, 1291 (2013). Although Plaintiffs have filed a contemporaneous
notice of appeal that also challenges the trial court’s dismissal of their
complaint, we view the trial court’s interpretation of Article 9, Section 22
of the Arizona Constitution and the resulting determination of standing
concerning the plaintiff legislators as pure legal issues of sufficient
urgency and statewide importance to be appropriately decided at this



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                          Opinion of the Court

stage. See Ariz. Corp. Comm’n v. State ex rel. Woods, 171 Ariz. 286, 288, 830
P.2d 807, 809 (1992). The issues presented in this litigation have
potentially important ramifications for Arizona’s state budget and may
impact a portion of Arizona citizens who rely on Medicaid and the state
agencies that operate it. See League of Ariz. Cities and Towns v. Martin, 219
Ariz. 556, 558, ¶ 4, 201 P.3d 517, 519 (2009) (noting that disputes impacting
the state budget are appropriate for special action review); see also State
Comp. Fund v. Symington, 174 Ariz. 188, 192, 848 P.2d 273, 277 (1993)
(observing that budget issues are entitled to “prompt resolution” so that
the legislative and executive branches “will know where they stand” and
be able to act accordingly.). For these reasons, we choose in our discretion
to exercise special action jurisdiction.

                                ANALYSIS

¶5             The trial court ruled that the Legislature has the power to
decide whether a bill must be passed by a two-thirds supermajority of
both legislative chambers and that Plaintiffs therefore lack standing to
bring this constitutional challenge to HB 2010. Although standing
questions are usually resolved before substantive questions, see Brewer v.
Burns, 222 Ariz. 234, 237-39, ¶¶ 10-22, 213 P.3d 671, 674-76 (2009), the legal
basis for the trial court’s ruling compels us to review its substantive ruling
as a predicate to our review of the standing issue. We do not, however,
reach the ultimate constitutional question of whether HB 2010 was subject
to the requirements of Article 9, Section 22 of the Arizona Constitution.

I.     Article 9, Section 22 of the Arizona Constitution

¶6            We begin our de novo review by first addressing the trial
court’s interpretation of Article 9, Section 22(D) of the Arizona
Constitution. See Ariz. Minority Coal. for Fair Redistricting v. Ariz. Indep.
Redistricting Comm’n, 211 Ariz. 337, 344, ¶ 14, 121 P.3d 843, 850 (App.
2005) (noting de novo review of a trial court’s constitutional
interpretation). The voters of Arizona amended the Arizona Constitution
in 1992 to add Article 9, Section 22, which provides:

       (A) An act that provides for a net increase in state revenues,
       as described in subsection B is effective on the affirmative
       vote of two-thirds of the members of each house of the
       legislature. If the act receives such an affirmative vote, it
       becomes effective immediately on the signature of the
       governor as provided by article IV, part 1, section 1. If the
       governor vetoes the measure, it shall not become effective


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            BIGGS v. HON COOPER/BREWER
                  Opinion of the Court

unless it is approved by an affirmative vote of three-fourths
of the members of each house of the legislature.

(B) The requirements of this section apply to any act that
provides for a net increase in state revenues in the form of:

      1. The imposition of any new tax.

      2. An increase in a tax rate or rates.

      3. A reduction or elimination of a tax deduction,
      exemption, exclusion, credit or other tax exemption
      feature in computing tax liability.

      4. An increase in a statutorily prescribed state fee or
      assessment or an increase in a statutorily prescribed
      maximum limit for an administratively set fee.

      5. The imposition of any new state fee or assessment
      or the authorization of any new administratively set
      fee.

      6. The elimination of an exemption from a statutorily
      prescribed state fee or assessment.

      7. A change in the allocation among the state, counties
      or cities of Arizona transaction privilege, severance,
      jet fuel and use, rental occupancy, or other taxes.

      8. Any combination of the elements described in
      paragraphs 1 through 7.

(C) This section does not apply to:

      1. The effects of inflation, increasing assessed
      valuation or any other similar effect that increases
      state revenue but is not caused by an affirmative act
      of the legislature.

      2. Fees and assessments that are authorized by
      statute, but are not prescribed by formula, amount or
      limit, and are set by a state officer or agency.



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                    BIGGS v. HON COOPER/BREWER
                          Opinion of the Court


              3. Taxes, fees or assessments that are imposed by
              counties, cities, towns and other political subdivisions
              of this state.

       (D) Each act to which this section applies shall include a
       separate provision describing the requirements for
       enactment prescribed by this section.

¶7              In dismissing Plaintiffs’ complaint, the trial court held that
“[w]hether a bill is subject to [Article 9, Section 22] is determined by the
Legislature itself,” evidently relying on Defendants’ argument that
subsection (D) granted such power to the Legislature. Defendants urge
this court to affirm that holding, arguing that whether to include language
in a bill pursuant to subsection (D) is an “official decision of each
chamber” that falls under the purview of Article 4, Part 2, Section 8 of the
Arizona Constitution, which grants each legislative chamber the power to
“determine its own rules of procedure.” Essentially, Defendants argue
that whether a bill must be passed in accordance with Article 9, Section 22
is a political question not reviewable by the courts.

¶8            Generally, political questions “involve decisions that the
constitution commits to one of the political branches of government and
raise issues not susceptible to judicial resolution according to discoverable
and manageable standards.” Forty-Seventh Legislature of State v. Napolitano,
213 Ariz. 482, 485, ¶ 7, 143 P.3d 1023, 1026 (2006). The manner in which
the legislature conducts its business is usually a political question. See
Burns, 222 Ariz. at 239, ¶ 21, 213 P.3d at 676; Forty-Seventh Legislature, 213
Ariz. at 485, ¶ 7, 143 P.3d at 1026. In this situation, however, the Arizona
Constitution imposes a “discoverable and manageable standard” —
namely, that a bill providing “for a net increase in state revenues,” as
described in subsection (B) of Article 9, Section 22 and not excluded by
subsection (C), must be passed by a supermajority of each legislative
chamber in accordance with subsection (A).

¶9            We reject the argument that Article 9, Section 22(D) grants
the legislature sole power to dictate when and if a bill is subject to passage
by a two-thirds supermajority under the Arizona Constitution. Rather,
subsection (D) requires simply that, if a bill imposes measures raising
revenues of the type listed in subsection (B), “a separate provision” must
be added to the bill’s language that denotes that the bill must be enacted
in accordance with subsection (A)’s two-thirds supermajority



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requirement. We reach this conclusion because the plain language of
Article 9, Section 22(A)-(C) reveals that Section 22 is a limitation on the
legislature’s power to pass certain revenue raising measures. To interpret
subsection (D) as giving a bare majority in each chamber of the legislature
the authority to determine when a bill must be passed by a supermajority
eliminates Article 9, Section 22’s ability to act as a limiting provision on
the legislature’s power. See Earhart v. Frohmiller, 65 Ariz. 221, 224, 178 P.2d
436, 437 (1947) (explaining that “state constitutions are not grants of
power, but instead are limitations thereof”); Cave Creek Unified School
District v. Ducey, 233 Ariz. 1, 5, ¶ 13, 308 P.3d 1152, 1156 (2013) (observing
“[o]ur state constitution, unlike the federal constitution, does not grant
power, but instead limits the exercise and scope of legislative authority”).

¶10           The absence of the required “separate provision” may mean
that a majority of legislators did not decide that the constitutional
supermajority vote was required, but subsection (D) does not bestow
upon the legislature the sole power to decide whether a supermajority
vote is mandated. Subsection (D)’s meaning must be determined in light
of subsection (A)’s unambiguous requirements. Even if subsection (D)’s
meaning — in isolation — may not be clear, the four subsections must be
construed together to achieve the intended effect of the language and
requirements of Section 22 as a whole. See State ex rel. Jones v. Lockhart, 76
Ariz. 390, 398, 265 P.2d 447, 452-53 (1953) (noting that constitutional
provisions must be analyzed by “the whole of the provision and its
relation to other parts of the Constitution”); Kilpatrick v. Superior Court In
and For Maricopa County, 105 Ariz. 413, 418, 466 P.2d 18, 24 (1970)
(observing that “we would be compelled to construe [two sections of the
Arizona constitution] together for constitutions must be construed as a
whole and their various parts read together”). It follows, then, that
subsection (D) cannot vitiate the legislature’s obligation to follow the
requirements established by subsection (A) when applicable. See State v.
Montes, 226 Ariz. 194, 198, ¶ 18, 245 P.3d 879, 883 (2011) (noting that even
if one part of a provision is ambiguous standing alone, the provision
“does not undermine” the effect of other unambiguous parts of the
enactment).

¶11           A hypothetical example is instructive here. If the legislature
considered a bill that would increase state revenues by raising the state
income tax rates, such a bill would presumably fall within the purview of
Article 9, Section 22(A) and (B). Even if the legislature did not enact a
“separate provision describing the requirements for enactment prescribed
by this section” as subsection (D) requires, such an omission would not



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                    BIGGS v. HON COOPER/BREWER
                          Opinion of the Court

defeat the constitution’s requirement that any bill raising the state income
tax rates be passed by a two-thirds supermajority of each legislative
chamber.

¶12          For these reasons, we conclude that Article 9, Section 22(D)
does not grant sole authority to the legislature to decide when a
supermajority vote is required to increase existing taxes or impose new
taxes. Accordingly, the trial court erred in holding that the legislature
alone determines whether a bill must be passed by a two-thirds
supermajority vote of each chamber in accordance with Article 9, Section
22.

II.    Standing

                                 A.       Legislators

¶13           The trial court found that Plaintiffs have no standing to
challenge the constitutionality of A.R.S. § 36-2901.08, concluding instead
that they “[sue] because a majority of the Legislature voted not to impose
the requirement” that HB 2010 be passed by a two-thirds supermajority.
In Arizona, standing is “not jurisdictional, but instead is a prudential
doctrine requiring ‘a litigant seeking relief in the Arizona courts [to] first
establish standing to sue.’” Dobson, 233 Ariz. at 122, ¶ 9, 309 P.3d at 1292
(quoting Bennett v. Napolitano, 206 Ariz. 520, 525, ¶ 19, 81 P.3d 311, 316
(2003)). Arizona courts may waive standing requirements in exceptional
circumstances or in cases of great public importance that are likely to
recur. Sears v. Hull, 192 Ariz. 65, 71, ¶ 25, 961 P.2d 1013, 1019 (1998).

¶14           The trial court correctly noted that, generally, legislators do
not possess standing to sue unless their alleged injury is “particularized”
to a “private right.” See Bennett, 206 Ariz. at 526-27, ¶ 28, 81 P.3d at 317-
18. The Bennett case, however, recognizes an exception to this general rule
as established by two United States Supreme Court opinions. In Raines v.
Byrd, 521 U.S. 811 (1997), the Court considered whether several individual
members of Congress could challenge the constitutionality of an act that
Congress had passed and the plaintiff members had voted against.
Holding that the individual members had no standing, the Court
concluded that the alleged injury was “based on a loss of political power,
not loss of any private right.” Id. at 821. The Court distinguished this
holding from its decision in Coleman v. Miller, 307.U.S. 433 (1939). In
Coleman, a majority of the Court agreed that a group of plaintiff legislators
had standing to challenge whether a measure had been passed in a



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constitutional manner, noting that, if the plaintiffs’ allegation was true,
their “votes against ratification [had] been overridden and virtually held
for naught although . . . their votes would have been sufficient to defeat
ratification.” Id. at 438; see also Raines, 521 U.S. at 822 n.5. In recognizing
Coleman and Raines, the Arizona Supreme Court ultimately concluded that
the plaintiff legislators in Bennett were alleging an injury that more rightly
resembled a “loss of political power” as analyzed in Raines, and as a result
they lacked standing. Bennett, 206 Ariz. at 526-27, ¶ 28, 81 P.3d at 317-18.

¶15            The trial court here, relying on Bennett, similarly concluded
that the plaintiff legislators’ alleged injury was a result of a “lost battle”
over the passage of HB 2010. If, however, HB 2010 was constitutionally
required to be passed by a supermajority of both legislative chambers, the
plaintiff legislators experienced an unconstitutional “overriding” that
“virtually held [their votes] for naught.” See Coleman, 307 U.S. at 438. We
conclude, therefore, that standing is proper for the plaintiff legislators
under the Coleman analysis, as recognized in Bennett.

¶16            We do not believe, as Defendants claim, that declaring
standing in this case for the plaintiff legislators greatly expands the
holding of Bennett, nor should it open the proverbial floodgates for legal
challenges against bills passed by the legislature. Rather, we apply to
these specific facts the distinction regarding standing recognized by the
United States Supreme Court in Coleman and the Arizona Supreme Court
in Bennett. Legislators, like private citizens, have a constitutional right to
have their votes count a certain amount, and if a vote is properly alleged
to have counted less than the constitutionally required amount, standing
exists to claim a constitutional injury. Bennett, 206 Ariz. at 525-26, 81 P.3d
311 at 316-17; Coleman, 307 U.S. at 438; see Baker v. Carr, 369 U.S. 186, 207-
08 (1962) (noting standing for citizens on questions of voter “impairment,”
including “dilution by a false tally”); cf. Gray v. Sanders, 372 U.S. 368 (1963)
(holding as unconstitutional an electoral system in which votes were
counted equally but weighed unequally).

¶17           Plaintiffs contend that we should also decide the ultimate
issue of whether HB 2010 was subject to passage by a two-thirds
supermajority, but in our discretion we decline to do so. Whether the bill
properly falls within Article 9, Section 22(B) or (C) may include factual
determinations that the trial court should address in the first instance.
Defendants have expressed a desire to develop a record on the merits, and
we are reluctant to rule on a basis neither fully briefed nor addressed by
the trial court.     Accordingly, we remand this action for further



                                       9
                    BIGGS v. HON COOPER/BREWER
                          Opinion of the Court

proceedings. By deciding that the plaintiff legislators have standing to
raise the question whether their votes were given the effect to which they
were constitutionally entitled, we express no opinion on the merits of
whether a supermajority vote of each chamber was required to pass HB
2010.

                                 B.     Constituents

¶18            We next review whether the plaintiff constituents have
standing to challenge the constitutionality of A.R.S § 36-2901.08. To
establish standing, plaintiffs must allege “a distinct and palpable injury”
that goes beyond an “allegation of generalized harm that is shared alike
by all or a large class of citizens.” Sears, 192 Ariz. at 69, ¶ 16, 961 P.2d at
1017. Because the statutes these plaintiff constituents seek to challenge do
not directly apply to them and they are fully represented in the
legislature, we affirm the trial court’s holding that no distinct and
palpable injury has been established to support standing.

                               C.     Taxpayer Jenney

¶19            In reviewing whether taxpayer Jenney may bring an action
to challenge A.R.S. § 36-2901.08 pursuant to A.R.S. §§ 35-212(A) and -213,
we conclude that the trial court correctly ruled that standing for taxpayer
Jenney is not proper. Sections 35-212 and -213 specifically provide for “an
action to prevent the illegal payment of monies or to recover monies
alleged to be illegally paid.” State ex. rel. Woods v. Block, 189 Ariz. 269, 272,
942 P.2d 428, 431 (1997). In Block, the supreme court held that the
Attorney General, under A.R.S. § 35-212, had standing to challenge the
statutory power of a legislatively created entity to spend funds in
implementing its mission. Id. at 274, 942 P.2d at 433. In this case,
however, the statutes that taxpayer Jenney seeks to challenge do not grant
an express expenditure power as did the statutes reviewed in Block.
Although the supreme court rejected the argument that the Attorney
General did not have standing because he failed to “specifically
challenge[] any particular expenditure of funds,” id., the statutes at issue
in Block distinctly granted an expenditure power that was traceable and
identifiable. As such, Block does not interpret A.R.S. § 35-212 to mean, as
Plaintiffs assert, that specific expenditure challenges are categorically not
required to establish standing for the Attorney General. Rather, the Block
court observed that, because a specific expenditure power existed in the
statutes at issue in that case, the Attorney General’s challenge of those
statutes “necessarily includes a request to prohibit payment” in exercise of



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                   BIGGS v. HON COOPER/BREWER
                         Opinion of the Court

that power. Id. No such express expenditure power exists in the statutes
at issue here. And regardless of whether A.R.S. § 36-2901.08 imposes a tax
or assessment, the collection of funds authorized by this statute does not
establish any identifiable payment that may be prevented or recovered.

                              CONCLUSION

¶20           We accept jurisdiction over this special action. We deny
relief from and affirm the trial court’s ruling denying standing for the
plaintiff constituents and taxpayer Jenney. We grant relief from and
reverse the trial court’s ruling denying standing for the plaintiff
legislators. Plaintiff legislators have standing to bring this challenge. We
also hold that Article 9, Section 22(D) of the Arizona Constitution does not
vest in the legislature the sole power to determine when a two-thirds
supermajority vote of each legislative chamber is required under the
constitution for passage of legislation. We dismiss as moot the appeal
filed by Plaintiffs, our cause number 1 CA-CV 14-0180. And we remand
this action to the trial court for further proceedings consistent with this
opinion.




                                         :MJT




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