                                 IN THE

    SUPREME COURT OF THE STATE OF ARIZONA

                            STATE OF ARIZONA,
                                Appellee,

                                     v.

                      ANDRE LEE JUWAUN MAESTAS,
                              Appellant.


                           No. CR-17-0193-PR
                           Filed May 23, 2018


           Appeal from the Superior Court in Maricopa County
                   The Honorable Dean M. Fink, Judge
                          No. CR 2014-127252
                         VACATED IN PART

              Opinion of the Court of Appeals, Division One
                        242 Ariz. 194 (App. 2017)
                               VACATED


COUNSEL:

Mark Brnovich, Arizona Attorney General, Dominic E. Draye (argued),
Solicitor General, Joseph T. Maziarz, Chief Counsel, Criminal Appeals
Section, Adele Ponce, Assistant Attorney General, Phoenix, Attorneys for
State of Arizona

Thomas W. Dean (argued), Thomas W. Dean Attorney at Law, Phoenix,
Attorney for Andre Lee Juwaun Maestas

David J. Euchner, Sarah L. Mayhew (argued), Tucson, Attorneys for
Amicus Curiae Arizona Attorneys for Criminal Justice

Lee Phillips, Law Offices of Lee Phillips PC, Flagstaff, Attorney for Amicus
Curiae Students for Sensible Drug Policy
                           STATE V. MAESTAS
                           Opinion of the Court



JUSTICE PELANDER authored the opinion of the Court, in which CHIEF
JUSTICE BALES, VICE CHIEF JUSTICE BRUTINEL, and JUSTICES
TIMMER and LOPEZ, and JUDGE ECKERSTROM joined. ∗ JUSTICE
BOLICK concurred.


JUSTICE PELANDER, opinion of the Court:

¶1            The Arizona Medical Marijuana Act (“AMMA”), enacted by
voters as Proposition 203 in 2010, generally permits qualified AMMA
cardholders to possess a limited amount of marijuana and, with certain
exceptions and limitations, immunizes their AMMA-compliant possession
or use from “arrest, prosecution or penalty in any manner.” A.R.S.
§ 36-2811(B). Among its limitations, the AMMA prohibits the possession or
use of medical marijuana at certain specified locations. A.R.S. § 36-2802(B).
In 2012, the Arizona Legislature added another location by enacting a
statute under which “a person, including [a qualified AMMA cardholder],
may not lawfully possess or use marijuana on the campus of any public
university, college, community college or postsecondary educational
institution.” A.R.S. § 15-108(A). Because that statute violates Arizona’s
Voter Protection Act (“VPA”) with respect to AMMA-compliant marijuana
possession or use, we hold it unconstitutional as applied to the university
student/cardholder in this case.

                          I.   BACKGROUND

¶2             In March 2014, an Arizona State University police officer
arrested Andre Lee Juwaun Maestas after the officer observed Maestas
sitting in a road near Maestas’s dormitory on the university campus. The
officer searched Maestas and found a valid AMMA registry identification
card in Maestas’s wallet. After Maestas admitted that he had marijuana in
his dorm room, the officer obtained a search warrant, searched Maestas’s
dorm room, and found two envelopes containing 0.4 grams of marijuana.
(The AMMA provides that an “[a]llowable amount of marijuana” is “[t]wo-




∗
  Justice Andrew W. Gould has recused himself from this case. Pursuant
to article 6, section 3 of the Arizona Constitution, the Honorable Peter J.
Eckerstrom, Chief Judge of the Arizona Court of Appeals, Division Two,
was designated to sit in this matter.


                                     2
                             STATE V. MAESTAS
                             Opinion of the Court

and-one-half ounces of usable marijuana.” A.R.S. § 36-2801(1)(a)(i).
Maestas’s 0.4 grams of marijuana is roughly equivalent to 0.014 ounces.)

¶3           The State charged Maestas with obstructing a public
thoroughfare and possession of marijuana. Before trial, Maestas moved to
dismiss the marijuana-possession charge, arguing that his possession was
AMMA-compliant and he was therefore immune from prosecution under
§ 36-2811(B). The State opposed the motion, arguing that Maestas’s
AMMA-compliant possession of marijuana was nevertheless unlawful
under § 15-108(A), which prohibits even AMMA cardholders from
possessing marijuana on public college and university campuses. The
superior court denied Maestas’s motion, convicted him on both counts after
a bench trial, imposed a fine on the marijuana-possession charge, and
placed him on probation for one year.

¶4             The court of appeals vacated Maestas’s conviction for
possession of marijuana and held that § 15-108(A) is unconstitutional under
the VPA. State v. Maestas, 242 Ariz. 194, 198 ¶ 16 (App. 2017). As a threshold
matter, the court ruled that the constitutionality of § 15-108(A) is a
justiciable question because the political question doctrine is inapplicable
here. Id. at 196–97 ¶¶ 9–10. On the merits, the court reasoned that the
VPA’s requirements apply to § 15-108(A) because the statute amends the
AMMA by re-criminalizing AMMA “cardholders’ marijuana possession on
college and university campuses.” Id. at 197 ¶¶ 12–13. The court further
concluded that § 15-108(A) violates the VPA because the AMMA’s purpose
is to protect AMMA “cardholders from criminal and other penalties,” id. at
196 ¶ 8, and § 15-108(A) does not further that purpose but rather
“eliminates some of [the AMMA’s] protections,” id. at 197 ¶ 13.

¶5           We granted review because § 15-108(A)’s validity presents a
recurring legal question of statewide importance. We have jurisdiction
under article 6, section 5(3), of the Arizona Constitution and A.R.S.
§ 12-120.24.

                             II. DISCUSSION

¶6             We review the constitutionality of a statute de novo. Biggs v.
Betlach, 243 Ariz. 256, 258 ¶ 9 (2017). “When the statute in question involves
no fundamental constitutional rights or distinctions based on suspect
classifications, we presume the statute is constitutional and will uphold it
unless it clearly is not.” Cave Creek Unified Sch. Dist. v. Ducey, 233 Ariz. 1, 5
¶ 11 (2013).

                                        A.


                                       3
                             STATE V. MAESTAS
                             Opinion of the Court

¶7            The State first contends that the constitutionality of
§ 15-108(A) under the VPA is a non-justiciable political question because
the AMMA “authorizes universities to restrict and penalize cardholders to
protect federal funding, and the necessity of such measures” is delegated to
the legislature. We disagree.

¶8             “The Arizona Constitution entrusts some matters solely to the
political branches of government, not the judiciary.”           Ariz. Indep.
Redistricting Comm’n v. Brewer, 229 Ariz. 347, 351 ¶ 16 (2012); see also Ariz.
Const. art. 3 (providing that the three departments of Arizona’s
government “shall be separate and distinct, and no one of such departments
shall exercise the powers properly belonging to either of the others”).

¶9            Flowing from “the basic principle of separation of powers,” a
non-justiciable political question is presented when “there is a textually
demonstrable constitutional commitment of the issue to a coordinate
political department; or a lack of judicially discoverable and manageable
standards for resolving it.” Kromko v. Ariz. Bd. of Regents, 216 Ariz. 190, 192
¶¶ 11–12 (2007) (internal quotation marks omitted) (quoting Nixon v. United
States, 506 U.S. 224, 228 (1993)); see also Forty-Seventh Legislature v.
Napolitano, 213 Ariz. 482, 485 ¶ 7 (2006) (defining “[p]olitical questions” as
“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”). Neither aspect of this test is
present here.

¶10            The State argues that there is a “textually demonstrable
constitutional commitment of the issue” to the legislature, Kromko, 216 Ariz.
at 192 ¶ 11, because the Arizona Constitution commits to that branch the
power to establish and maintain “a general and uniform public school
system,” which includes universities, Ariz. Const. art. 11, § 1(A)(6). But the
legislature’s power to maintain universities is limited by the VPA.

¶11             As relevant here, the Arizona Constitution was amended in
1998 when voters approved the VPA to expressly limit the legislature’s
“authority to amend measures approved by voters in initiative elections.”
Ariz. Early Childhood Dev. & Health Bd. v. Brewer, 221 Ariz. 467, 469 ¶ 6 (2009);
see also Ariz. Const. art. 4, pt. 1, § 1(6)(C) (providing that the legislature may
only amend a voter initiative if “the amending legislation furthers the
purposes of such measure and at least three-fourths of the members of each
house of the legislature . . . vote to amend such measure”). Adopting the
State’s argument would mean that, notwithstanding the VPA’s limitations
on the legislature’s power, courts could not adjudicate any VPA challenge


                                        4
                             STATE V. MAESTAS
                             Opinion of the Court

to a law enacted in a subject area over which the legislature exercised power
given to it by the constitution. Such an interpretation would render the
VPA meaningless. Accordingly, there is not a “textually demonstrable
constitutional commitment of the issue” presented here, i.e., whether
§ 15-108(A) is constitutional under the VPA, to “a coordinate political
department.” Kromko, 216 Ariz. at 192 ¶ 11 (internal quotation marks
omitted) (quoting Nixon, 506 U.S. at 228).

¶12           In addition, there is not “a lack of judicially discoverable and
manageable standards for resolving” this issue. Id. We have ruled on VPA
challenges in the past, see, e.g., Cave Creek Unified Sch. Dist., 233 Ariz. at 4–8
¶¶ 8–25; Brewer, 221 Ariz. at 469–72 ¶¶ 5–18, and no legal obstacle prevents
us from resolving the challenge raised here. Accordingly, we conclude that
the issue presented is justiciable.

                                        B.

¶13           The State next contends that the VPA’s requirements do not
apply to § 15-108(A) because the legislature did not amend the AMMA
when it enacted § 15-108(A). The State reasons that the AMMA “expressly
authorizes restrictions for cardholders on university campuses” and
“expressly authorizes penalties in order to assure continued access to
federal funding.” Alternatively, the State argues that even if the VPA’s
requirements apply to § 15-108(A), the legislature complied with those
requirements because at least three-fourths of the members of each chamber
voted to enact § 15-108(A), and that law is consistent with the AMMA when
the statutory scheme is viewed as a whole. We disagree.

¶14           The VPA limits the legislature’s power to amend, repeal, or
supersede voter initiatives. See Ariz. Const. art. 4, pt. 1, § 1(6)(B)–(C), (14).
A threshold question, therefore, is whether the legislature amended,
repealed, or superseded the AMMA when it enacted § 15-108(A). It is
undisputed that § 15-108(A) did not repeal or supersede the AMMA, but
the parties disagree about whether § 15-108(A) amends it.

¶15           The AMMA specifies the circumstances under which the
legislature may impose “civil, criminal or other penalties” when a person,
including a qualified AMMA cardholder, possesses or uses marijuana.
A.R.S. § 36-2802(B). Specifically, the AMMA “does not authorize any
person” to possess or use marijuana in the following locations: “[o]n a
school bus,” “[o]n the grounds of any preschool or primary or secondary
school,” and “[i]n any correctional facility.” § 36-2802(B)(1)–(3). In general,
when the legislature (or voters) expressly prescribes a list in a statute (or



                                        5
                            STATE V. MAESTAS
                            Opinion of the Court

initiative), “we assume the exclusion of items not listed.” State v. Ault, 157
Ariz. 516, 519 (1988). Because the AMMA sets forth a list of locations where
the legislature may impose “civil, criminal or other penalties” when a
person possesses or uses marijuana, § 36-2802, and because that list does
not include college and university campuses (unlike pre-, primary-, and
secondary-school grounds), we assume that the voters did not intend to
criminalize AMMA-compliant possession or use of marijuana on public
college and university campuses.

¶16            By its terms, § 15-108(A) amends the AMMA by adding a
location to the AMMA’s list of specified locations where the legislature may
impose “civil, criminal or other penalties” for a person’s possession or use
of marijuana otherwise allowed under the AMMA. § 36-2802. Indeed,
§ 15-108(A) begins by stating that “[i]n addition to the limitations
prescribed in” § 36-2802(B), a person “may not lawfully possess or use
marijuana on the campus of any public university, college, community
college or postsecondary educational institution.” Consequently, the
legislature amended the AMMA when it enacted § 15-108(A) because that
statute makes AMMA-compliant possession or use of marijuana on public
college and university campuses criminal.

¶17            Although this conclusion is apparent from the statute’s terms,
it is also bolstered by § 15-108’s legislative history. When that proposed
law was introduced in the legislature as House Bill 2349, the Bill Summary
noted that it would “require the affirmative vote of at least three-fourths of
the members of each house of the Legislature” to be enacted. Ariz. H.B.
Summary for H.B. 2349, 50th Leg., 2d Reg. Sess. (Jan. 23, 2012). With one
exception that is inapplicable here, see Ariz. Const. art. 9, § 22(A) (requiring
three-fourths vote of legislature to override governor’s veto of revenue-
raising act), such a requirement applies only when a legislative enactment
is subject to the VPA. Accordingly, when House Bill 2349 was introduced,
the bill’s sponsor presumably understood that its provisions would amend
the AMMA if enacted.

¶18           For the foregoing reasons, we conclude that the VPA’s
restrictions apply to the legislature’s enactment of § 15-108(A) because it
amends the AMMA. We next turn to whether the legislature complied with
the VPA’s requirements when it enacted § 15-108(A).

¶19           To comply with the VPA, the legislature may constitutionally
amend a voter initiative only if “the amending legislation furthers the
purposes of such measure and at least three-fourths of the members of each
house of the legislature . . . vote to amend such measure.” Ariz. Const. art.


                                       6
                            STATE V. MAESTAS
                            Opinion of the Court

4, pt. 1, § 1(6)(C). Here, “at least three-fourths of the members of each house
of the legislature” voted to enact § 15-108(A). Id. The dispositive question,
therefore, is whether § 15-108(A) “furthers the purposes” of the AMMA. Id.
It does not.

¶20            The AMMA “permits those who meet statutory conditions to
[possess and] use medical marijuana.” Reed-Kaliher v. Hoggatt, 237 Ariz.
119, 122 ¶ 7 (2015). “Because marijuana possession and use are otherwise
illegal in Arizona, . . . the drafters [of the AMMA] sought to ensure that
those using marijuana pursuant to [the] AMMA would not be penalized for
such use.” Id. Indeed, this purpose is made explicit in the AMMA’s voter
initiative statements. See Proposition 203 § 2(G) (2010) (stating that the
purpose of the AMMA “is to protect patients with debilitating medical
conditions . . . from arrest and prosecution, [and] criminal and other
penalties . . . if such patients engage in the medical use of marijuana”).
Criminalizing AMMA-compliant marijuana possession or use on public
college and university campuses plainly does not further the AMMA’s
primary purpose as expressed in those statements supporting the voter
initiative. Section 15-108(A) does not “protect” qualifying AMMA
cardholders from criminal penalties arising from AMMA-compliant
marijuana possession or use on public college and university campuses, but
rather subjects them to such penalties. Therefore, because § 15-108(A) does
not further the purpose of the AMMA, we hold that § 15-108(A) violates the
VPA as applied to AMMA-compliant marijuana possession or use.

¶21              In so holding, we disagree with the State that the AMMA’s
anti-discrimination provision, A.R.S. § 36-2813(A), authorizes the
legislature to criminalize AMMA-compliant marijuana possession or use
on public college and university campuses to preserve federal funding.
Section 36-2813(A) provides that a “school” may “penalize a person solely
for his status as a cardholder” only if “failing to do so would cause the
school . . . to lose a monetary or licensing related benefit under federal law
or regulations.”

¶22           By its terms, § 36-2813(A) does not authorize the legislature to
criminalize AMMA-compliant marijuana possession or use on public
college and university campuses for two reasons. First, § 36-2813(A)
authorizes a “school” to penalize a cardholder to preserve federal funding.
But a school is not authorized to enact criminal laws. Therefore, any
authority that is vested in a school under this statute does not extend to
criminalizing AMMA-compliant marijuana possession or use.




                                      7
                            STATE V. MAESTAS
                            Opinion of the Court

¶23           Second, even if § 36-2813(A) did authorize the legislature to
take some action to preserve federal funding, criminalizing AMMA-
compliant marijuana possession or use is impermissible because it is
unnecessary to achieve the statute’s purpose. The State has not shown that
failing to “penalize a person solely for his status as a cardholder . . . would
cause” a school to lose federal funding. § 36-2813(A) (emphasis added). A
university can comply with federal funding requirements by adopting and
implementing “a program to prevent the use of illicit drugs.” 20 U.S.C.
§ 1011i(a). The program must prohibit “the unlawful possession . . . of illicit
drugs,” id. § 1011i(a)(1)(A), and describe “the applicable legal sanctions
under local, State, or Federal law for the unlawful possession . . . of illicit
drugs,” id. § 1011i(a)(1)(B), which may include “referral for prosecution,”
id. § 1011i(a)(1)(E). 1 But a university does not have to guarantee
prosecution for violations of its program. And it can refer violations of its
program to the federal prosecutor. The State has not shown that a
university would lose (or has lost) federal funding if a state prosecutor did
not prosecute violations of the university’s program. Consequently, we
conclude that A.R.S. § 36-2813(A) does not authorize the legislature to
criminalize AMMA-compliant marijuana possession or use on public
university and college campuses to preserve federal funding.

                           III.   CONCLUSION

¶24           For the reasons stated above, we vacate Maestas’s conviction
for possession of marijuana. We also vacate the court of appeals’ opinion.




1  Arizona State University seemingly complies with federal law through its
anti-drug policy. See Ariz. State Univ., SSM 106–03: Alcohol and Other Drugs
on Campus, https://www.asu.edu/aad/manuals/ssm/ssm106-03.html
(last modified Aug. 1, 2014) (providing that “ASU prohibits the unlawful
use, possession, production, manufacture, and distribution of alcohol and
other drugs and controlled substances” and that “[a]nyone who violates
federal, state, or local law regarding alcohol or other drugs, including the
illegal possession of drug paraphernalia, or who otherwise engages in
illegal conduct is subject to prosecution and punishment by criminal and
civil authorities in addition to disciplinary or administrative sanctions
issued by the university”).


                                      8
                            STATE V. MAESTAS
                         JUSTICE BOLICK, concurring

JUSTICE BOLICK, concurring.

¶25           I agree completely with the Court’s opinion but write
separately to question our continued adherence to part of the political
question doctrine that does not appear to comport with foundational
constitutional principles.

¶26            We decide this case based on the familiar doctrine that “a non-
justiciable political question is presented when ‘there is a textually
demonstrable constitutional commitment of the issue to a coordinate
political department; or a lack of judicially discoverable and manageable
standards for resolving it.’” Supra ¶ 9 (quoting Kromko, 216 Ariz. at 192
¶¶ 11–12). For purposes of this opinion, I will refer to the first part of the
test as the “textual requirement” and the second as the “prudential
requirement.” I agree with the Court that the question here survives both
parts of the test and therefore presents a justiciable case.

¶27            It appears that we largely adopted the political question
doctrine, or at least the prudential requirement, as received wisdom from
the United States Supreme Court. See, e.g., Kromko, 216 Ariz. at 192–93
¶¶ 11–12 (citing to United States Supreme Court case law and the “federal
political question doctrine”). We should welcome wisdom from any
source, but if we embrace it we should make sure it is, indeed, wisdom. The
textual requirement, which forbids the judiciary from ruling on matters
constitutionally entrusted to the political branches of government, is central
to our system of separation of powers. But the judicially created prudential
requirement, as a standalone doctrine, does quite the opposite by
abdicating the judiciary’s central role of constitutional interpretation.

¶28            The textual requirement of the political question doctrine is
deeply embedded in our constitutional design, but the prudential
requirement is not. The Constitution’s framers intended that courts would
not decide matters entrusted to other branches of government, but equally
intended that the courts and not the other branches would determine
respective constitutional boundaries. In The Federalist No. 78, Alexander
Hamilton articulated a bright line of demarcation between the two,
recognizing hegemony of the political branches in matters assigned to their
discretion, but recognizing the Constitution as “fundamental law” and that
it “belongs to [the judiciary] to ascertain its meaning.” The Federalist No. 78,
at 430 (Alexander Hamilton) (Gideon ed., 2006). Hamilton described the
judiciary as “the weakest of the three departments” for it possesses none of
the powers assigned to the other branches. Id. at 429. But “the courts were
designed to be an intermediate body between the people and the


                                       9
                            STATE V. MAESTAS
                         JUSTICE BOLICK, concurring

legislature, in order, among other things, to keep the latter within the limits
assigned to their authority.” Id. at 430. By contrast, “[i]f it be said that the
legislative body are themselves the constitutional judges of their own
powers, . . . it may be answered, that this cannot be the natural presumption,
where it is not to be collected from any particular provisions in the
constitution.” Id. Constitutional limits “can be preserved in practice no
other way than through the medium of courts of justice, whose duty it must
be to declare all acts contrary to the manifest tenor of the constitution void.
Without this, all the reservations of particular rights or privileges would
amount to nothing.” Id. at 429.

¶29           That understanding was reflected in Marbury v. Madison, in
which the Supreme Court set forth the judiciary’s role in constitutional
adjudication and first articulated the political question doctrine. 5 U.S. 137,
165–66, 176–78 (1803). The Court recognized that under the Constitution,
“the President is invested with certain important political powers, in the
exercise of which he is to use his own discretion, and is accountable only to
his country in his political character, and to his own conscience.” Id. at 165–
66. Actions pursuant to such discretion “can never be examinable by the
courts.” Id. at 166. But in matters not expressly delegated to the other
branches, the Court made clear that the judiciary must interpret
constitutional boundaries. Id. at 176–78. “It is emphatically the province
and duty of the judicial department to say what the law is,” and
constitutional interpretation “is of the very essence of judicial duty.” Id. at
177–78.

¶30           As the Court declared in Marbury, “[i]t cannot be presumed
that any clause in the constitution is intended to be without effect; and
therefore such construction is inadmissible, unless the words require it.” Id.
at 174. Leaving interpretation to the other branches renders constitutional
rights and limits “mere surplusage” and “entirely without meaning.” Id.
There are no inkblots in the Constitution. See Robert H. Bork, The Tempting
of America 166 (1990) (examining the Ninth Amendment and concluding
that a “provision whose meaning cannot be ascertained is precisely like a
provision that is written in Sanskrit or is obliterated past deciphering by an
ink blot. No judge is entitled to interpret an ink blot on the ground that
there must be something under it.”). When the judiciary fails to interpret
and enforce constitutional rights and limits, it shrinks from its central duty
and drains the Constitution of its intended meaning.

¶31            The prudential requirement of the political question doctrine
traces its origins to New Deal jurisprudence but “was given its canonical
modern formulation” in Baker v. Carr, 369 U.S. 186 (1962). See Joshua S.


                                      10
                             STATE V. MAESTAS
                          JUSTICE BOLICK, concurring

Stillman, Note, The Costs of “Discernible and Manageable Standards” in Vieth
and Beyond, 84 N.Y.U. L. Rev. 1292, 1298 (2009). In Baker, the Supreme Court
set forth six bases for non-justiciability of a case as presenting a political
question. 369 U.S. at 217. The first two are whether there is “a textually
demonstrable constitutional commitment of the issue to a coordinate
political department” or “a lack of judicially discoverable and manageable
standards for resolving it.” Id. While the latter four are rarely invoked as
bases for non-justiciability, the first two typically are paired as a unified
test, as we have applied it here. But the two requirements are in
considerable tension. The first instructs the courts, quite properly, not to
intrude in a matter constitutionally entrusted to another branch of
government. The second implies that the matter is not constitutionally
entrusted to another branch, but that for prudential reasons we should not
decide it anyway, leading to the inevitable consequence that another branch
of government will decide the constitutional limits of its own power. As
noted above, the framers invested the judiciary with the duty to make sure
that would never happen. See Marbury, 5 U.S. at 176–78.

¶32             In interpreting the Arizona Constitution and determining
access to our courts, this Court is free, of course, to adopt or decline to adopt
prudential doctrines from the Supreme Court. See, e.g., Sears v. Hull, 192
Ariz. 65, 71 ¶¶ 24–25 (1998) (“Because our state constitution does not
contain a ‘case or controversy’ provision analogous to that of the federal
constitution, we are not constitutionally constrained to decline jurisdiction
based on lack of standing.”). In my view, especially where vindication of
individual rights is concerned, we should not adopt prudential doctrines
that restrict access to the courts or judicial resolution of constitutional issues
without careful consideration. The textual requirement of the political
question doctrine plainly accords with the Arizona Constitution, which
commands that our branches of government “shall be separate and distinct,
and no one of such departments shall exercise the powers properly
belonging to either of the others.” Ariz. Const. art. 3. But the prudential
requirement, which avoids constitutional interpretation and enforcement,
seems at odds with any constitution that establishes individual rights and
limits governmental powers.

¶33           The United States Supreme Court has rarely used the
prudential requirement of the political question doctrine as a standalone
basis for a non-justiciability ruling. See Stillman, supra at 1299 (stating that
the plurality opinion in Vieth v. Jubelirer, 541 U.S. 267 (2004), was “unique”
in that “it relied on the lack of judicially discernible and manageable
standards as an independently sufficient rationale” under the political
question doctrine “without any genuine argument that the issue was


                                       11
                            STATE V. MAESTAS
                         JUSTICE BOLICK, concurring

textually committed to a coordinate federal branch”); see also Nixon, 506 U.S.
at 228–30 (holding that the question was non-justiciable because it was
textually delegated to another branch and reasoning that “the use of the
word ‘try’ in the first sentence of the Impeachment Trial Clause lacks
sufficient precision to afford any judicially manageable standard of review
of the Senate’s actions”).

¶34           This Court applied the prudential requirement doctrine to
hold an issue non-justiciable in Kromko, 216 Ariz. at 194 ¶ 21. In so doing,
Kromko quoted Nixon for the proposition that “the concept of textual
commitment to a coordinate political department is not completely separate
from the concept of a lack of judicially discoverable and manageable
standards,” as “the lack of judicially manageable standards may strengthen
the conclusion that there is a textually demonstrable commitment to a
coordinate branch.” Kromko, 216 Ariz. at 193 ¶ 14 (quoting Nixon, 506 U.S.
at 228–29). The Court went on to cite both lack of judicially manageable
standards and textual commitment to other branches of government to
support its decision. Id. at 193 ¶¶ 13–14, 194 ¶ 21.

¶35           Whether the prudential requirement standing alone renders
an issue non-justiciable thus remains an open question. Regardless, in an
appropriate case, I would reexamine the prudential requirement of our
political question doctrine to determine whether it comports with our
constitutional design. For as the opening words of our Declaration of
Rights proclaim: “A frequent recurrence to fundamental principles is
essential to the security of individual rights and the perpetuity of free
government.” Ariz. Const. art. 2, § 1.




                                     12
