                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                DAVID CRAIG ARNER, Plaintiff/Appellant,

                                        v.

  CHARLES L. RYAN, Director of Arizona Department of Corrections,
                      Defendant/Appellee.

                             No. 1 CA-CV 13-0562
                               FILED 5-7-2015


           Appeal from the Superior Court in Maricopa County
                          No. CV2011-096782
                 The Honorable David K. Udall, Judge

                                  AFFIRMED


                                   COUNSEL

David Craig Arner, Florence
Plaintiff/Appellant

Arizona Attorney General’s Office, Phoenix
By Eryn M. McCarthy
Counsel for Defendant/Appellee
                             ARNER v. RYAN
                            Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Kent E. Cattani delivered the decision of the Court, in
which Judge Peter B. Swann and Judge Randall M. Howe joined.


C A T T A N I, Judge:

¶1            David Craig Arner appeals the superior court’s summary
judgment in favor of Charles A. Ryan, the Director of the Arizona
Department of Corrections (“ADC”), upholding the constitutionality of
Arizona Revised Statutes (“A.R.S.”) § 31-230(D), which authorizes the ADC
director to assess fees on deposits to prisoner spendable accounts.1 For
reasons that follow, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2           Arner is an ADC inmate. Since 2011, ADC has assessed a one
percent fee on all deposits to prisoner spendable accounts, including
Arner’s. Arner challenges the constitutionality of the statute authorizing
that assessment.

¶3            In 2011, the Arizona Legislature enacted A.R.S. § 41-797,
establishing the Department of Corrections Building Renewal Fund. See
2011 Ariz. Sess. Laws, ch. 33, § 13 (1st Reg. Sess.). Under § 41-797(B), monies
from the Building Renewal Fund are to be used for “projects that repair or
rework buildings and supporting infrastructure that are under the control
of the state department of corrections and that result in maintaining a
building’s expected useful life.”

¶4           The Legislature contemporaneously amended A.R.S. § 31-230
to add a subsection authorizing the ADC director to assess fees on deposits
made to prisoner spendable accounts and to deposit those fees in the
Building Renewal Fund. 2011 Ariz. Sess. Laws, ch. 33, § 11; A.R.S. § 31-
230(D). Pursuant to the amended statute, the director may:

       [E]stablish by rule a fee for any deposits made to a prisoner
       spendable account. The director shall deposit, pursuant to §§
       35-146 and 35-147, any monies collected pursuant to this

1     Absent material revisions after the relevant date, we cite to the
current version of referenced statutes.


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                            Decision of the Court

       subsection in the department of corrections building renewal
       fund established by § 41-797.

Under that statutory authority, Director Ryan issued formal Instruction 304
establishing a one percent assessment on all deposits made to prisoner
spendable accounts.

¶5           Arner filed a complaint in superior court for special action
and declaratory judgment challenging the constitutionality of the one
percent assessment. After the parties filed cross-motions for summary
judgment, the superior court granted Director Ryan’s motion. Arner timely
appealed, and we have jurisdiction under A.R.S. § 12-2101(A)(1).

                               DISCUSSION

¶6             Arner contends that A.R.S. § 31-230(D) is an unconstitutional
“special law” that violates Article 4, Part 2, Section 19 of the Arizona
Constitution, which provides that “[n]o local or special laws shall be
enacted in any of the following cases, that is to say: . . . Assessment and
collection of taxes. . . . When a general law can be made applicable.” Arner
further argues that the assessment is an improper tax, rather than a valid
fee or assessment, and he requests that ADC be ordered to return all monies
collected from his spendable account.

¶7             We review the constitutionality of legislative enactments de
novo and begin with the presumption that the statute is constitutional. See
Planned Parenthood Ariz., Inc. v. Am. Ass’n of Pro-Life Obstetricians &
Gynecologists, 227 Ariz. 262, 268, ¶ 9, 257 P.3d 181, 187 (App. 2011). “We
will not declare an act of the legislature unconstitutional unless we are
satisfied beyond a reasonable doubt that the act is in conflict with the
federal or state constitutions.” Chevron Chem. Co. v. Superior Court, 131 Ariz.
431, 438, 641 P.2d 1275, 1282 (1982). We have “a duty to construe a statute
so as to give it, if possible, a reasonable and constitutional meaning.” Ariz.
Downs v. Ariz. Horsemen’s Found., 130 Ariz. 550, 554, 637 P.2d 1053, 1057
(1981).

I.     Section 31-230(D) Is Not a Special Law.

¶8              Our constitution prohibits “special” laws. See Ariz. Const. art.
4, pt. 2, § 19. The purpose of this prohibition is “to prevent the legislature
from providing benefits or favors to certain groups or localities.” State
Comp. Fund v. Symington, 174 Ariz. 188, 192, 848 P.2d 273, 277 (1993). A law
is a special law if it “applies only to certain members of a class or to an
arbitrarily defined class which is not rationally related to a legitimate


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                            Decision of the Court

legislative purpose.” Ariz. Downs, 130 Ariz. at 557, 637 P.2d at 1060.
Conversely, a general law is one that “confers rights and privileges or
imposes restrictions on all persons of a given class where the classification
has a basis founded in reason.” State v. Loughran, 143 Ariz. 345, 347, 693
P.2d 1000, 1002 (App. 1985); see also Ariz. Downs, 130 Ariz. at 557, 637 P.2d
at 1060.

¶9            The Arizona Supreme Court has adopted a three-part test to
determine whether a statute is a special or general law and, accordingly,
whether it is constitutional. See Gallardo v. State, 236 Ariz. 84, 88, ¶ 11, 336
P.3d 717, 721 (2014). To satisfy this test, a statute must meet the following
requirements: (1) the law must rationally relate to a legitimate legislative
objective; (2) the classification must be legitimate, encompassing all
similarly situated members; and (3) the class must be elastic, allowing
members to move in and out of the class. Id. Section 31-230(D) meets all of
these requirements.

¶10            First, the Legislature has a legitimate interest in repairing
prison facilities and in recovering some of the cost of such repairs from the
prisoners who use the facilities. Cf. Hamm v. Ryan, 234 Ariz. 152, 154, ¶ 9,
318 P.3d 868, 870 (App. 2013) (as amended) (“[T]he legislature has a
legitimate interest in recovering some of the costs that inmate visitors
impose on the prison system.”).2 The imposition of a one percent fee on a
class of prisoners who use the facilities and who use a spendable account
rationally relates to the legitimate governmental objective of repairing the
buildings the prisoners use. Therefore, the statute satisfies the first
requirement.

¶11           Second, the classification is legitimate and encompasses all
members of the relevant class. A law is not “special” simply because it has
limited application. See Ariz. Downs, 130 Ariz. at 558, 637 P.2d at 1061.
“Such a law will be general if it applies to all cases and to all members of
the specified class to which the law is made applicable.” Id. Here, the
Legislature has specified a class—all inmates who elect to make deposits to
their prisoner spendable accounts. The fee assessed pursuant to A.R.S. §
31-230(D) applies to all the members of that specified class, and the monies
assessed are used to refurbish the facilities in which the class members
reside.



2     In Hamm, we upheld the constitutionality of A.R.S. § 41-1604(B)(3),
which imposes a background check fee on individuals visiting prison
inmates. 234 Ariz. at 152, ¶¶ 1–2, 318 P.3d at 868.


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                            Decision of the Court

¶12            Third, the class is elastic and allows members to move in and
out of it. See Long v. Napolitano, 203 Ariz. 247, 258, ¶ 36, 53 P.3d 172, 183
(App. 2002) (stating that a classification meets the third prong of the test if
it is sufficiently elastic to admit the entry of additional members and to
enable the exit of others). Here, members move into the class when they
enter the prison system and decide to deposit money into their prisoner
spendable account. Members move out of the class when they leave the
prison system or cease to make deposits.

¶13            Because § 31-230(D) satisfies the three-part test established by
the Arizona Supreme Court to assess special legislation challenges, we
conclude that the statute does not violate the special laws provision of
Article 4, Part 2, Section 19 of the Arizona Constitution.

II.    The Assessment Is a Fee, Not a Tax.

¶14            Arner argues that the assessment authorized by § 31-230(D) is
not a fee, but rather an impermissible tax within the meaning of Arizona’s
constitutional prohibition on special laws related to assessment and
collection of taxes. See Ariz. Const. art. 4, pt. 2, § 19(9). The Arizona
Supreme Court has identified several factors to examine when determining
whether an assessment is a fee or a tax:

       (1) the entity that imposes the assessment;

       (2) the parties upon whom the assessment is imposed; and

       (3) whether the assessment is expended for general public
       purposes, or used for the regulation or benefit of the parties
       upon whom the assessment is imposed.

May v. McNally, 203 Ariz. 425, 430–31, ¶ 24, 55 P.3d 768, 773–74 (2002)
(citation omitted). Analyzing these factors, we conclude that the § 31-
230(D) assessment is a fee.

       A.     ADC Imposes the Assessment.

¶15           An assessment is more likely to be a fee if it is imposed by a
regulatory agency rather than by the legislature. See Jachimek v. State, 205
Ariz. 632, 636, ¶ 14, 74 P.3d 944, 948 (App. 2003) (explaining that the classic
regulatory fee is imposed by an agency on the people subject to its
regulation); Bidart Bros. v. Cal. Apple Comm’n, 73 F.3d 925, 931 (9th Cir. 1996)
(“An assessment imposed directly by the legislature is more likely to be a
tax than an assessment imposed by an administrative agency.”). In this


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                            Decision of the Court

case, the entity that has imposed the one percent assessment, ADC, is an
agency authorized by the Legislature to oversee prisons and prisoners. See
A.R.S. § 41-1602. This factor weighs in favor of characterizing the
assessment on prisoner spendable accounts as a fee.

       B.     The Assessment Is Imposed Only Upon Prisoners.

¶16          An assessment is more likely to be a fee than a tax if it is
imposed on a narrow class of people who are subject to regulation by the
agency imposing the fee. See Bidart Bros., 73 F.3d at 931 (“An assessment
imposed upon a broad class of parties is more likely to be a tax than an
assessment imposed upon a narrow class.”); Jachimek, 205 Ariz. at 636, ¶ 15,
74 P.3d at 948 (holding that an assessment imposed against pawnbrokers
located within certain boundaries was a fee).

¶17           Here, ADC imposes the assessment on a narrow group of
people, i.e., prisoners who deposit money in their prisoner spendable
accounts. Accordingly, this factor also weighs in favor of concluding that
the assessment is a fee.

¶18            Arner argues that the one percent assessment is a “forced
contribution” and that there is no voluntary choice to move into the class.
We disagree. The necessity of paying the assessment does not arise until a
prisoner elects to make deposits to his or her spendable account. Stewart v.
Verde River Irrigation & Power Dist., 49 Ariz. 531, 545, 68 P.2d 329, 335 (1937)
(“[A] fee is always voluntary, in the sense that the party who pays it
originally has, of his own volition, asked a public officer to perform certain
services for him.”). Prisoners are not required to deposit monies into their
spendable accounts. They choose to do so.3




3       Arner suggests that the one percent assessment undermines his First
Amendment rights. In order to move out of the class “one would have to
forego purchase of religious books and materials, politically-oriented
newspapers and magazines, support of prison reform advocacy and other
activities protected by First Amendment principles.” Because Arner did
not make this argument before the superior court and has not sufficiently
raised and developed it on appeal, we decline to consider it. See McDowell
Mountain Ranch Land Coal. v. Vizcaino, 190 Ariz. 1, 5, 945 P.2d 312, 316 (1997)
(“[T]hese challenges were not properly raised below and thus we do not
consider them here.”); Schabel v. Deer Valley Unified Sch. Dist. No. 97, 186



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                             ARNER v. RYAN
                            Decision of the Court

       C.     The Monies Collected Benefit Prisoners.

¶19            Finally, an assessment is more likely to be a fee than a tax if it
is placed in a special fund and used to benefit the people upon whom it is
imposed. See Bidart Bros., 73 F.3d at 932 (“An assessment placed in a special
fund and used only for special purposes is less likely to be a tax.”). In this
case, the amounts assessed are deposited in the Building Renewal Fund.
The monies are used for the regulation and benefit of the parties upon
whom the assessment is imposed.

¶20            The assessment here is imposed by ADC on prisoners and the
monies assessed are used to benefit prisoners. Accordingly, we conclude
that the one percent assessment imposed on deposits to prisoner spendable
accounts is a fee, not an improper tax.4

                               CONCLUSION

¶21          For the foregoing reasons, we affirm the decision of the
superior court.




                                  :ama



Ariz. 161, 167, 920 P.2d 41, 47 (App. 1996) (“Issues not clearly raised and
argued in a party’s appellate brief are waived.”).

4       Arner also argues that the superior court failed to articulate “any
legal analysis or legal reasoning in support of [its] decision.” The superior
court was not required to do so do. See Ariz. R. Civ. P. 52(a) (establishing
that “[f]indings of fact and conclusions of law are unnecessary on decisions
of motions under Rule 12 or 56”). Moreover, we will uphold the superior
court’s summary judgment if it was correct on any ground. See Aguirre v.
Robert Forrest, P.A., 186 Ariz. 393, 397, 923 P.2d 859, 863 (App. 1996)
(“Although the court did not specify its reasons for denying defendants’
motion, we will affirm if its ruling was correct on any ground.”).



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