                    SUPREME COURT OF ARIZONA
                             En Banc




CLEAN ELECTIONS INSTITUTE, INC.,  )   Arizona Supreme Court
an Arizona non-profit             )   No. CV-04-0263-AP/EL
corporation; MICHAEL J. VALDER;   )
and LYDIA GUZMAN,                 )   Maricopa County
                                  )   Superior Court
            Plaintiffs/Appellees/ )   No. CV2004-012699
            Cross-Appellants,     )
                 v.               )
                                  )
JANICE BREWER, in her official    )
capacity as Secretary of State    )
for the State of Arizona,         )
                                  )
             Defendant/Appellant/ )
             Cross-Appellee,      )
                                  )
NO TAXPAYER MONEY FOR             )   O P I N I O N
POLITICIANS, an unincorporated    )
association; ERIC CROWN, in his   )
capacity as chairman of the       )
association; LETTIE PHILLIPS, in )
her capacity as treasurer of the )
association,                      )
                                  )
       Real Parties in Interest/ )
       Appellants/Cross-Appellees.)
                                  )
__________________________________)


             Appeal from Superior Court of Maricopa County
                          CV-2004-012699
                 The Honorable Margaret H. Downie
                             AFFIRMED
________________________________________________________________
Perkins Coie Brown & Bain P.A.                            Phoenix
     by Charles A. Blanchard
         Michael S. Mandell
         Michael T. Liburdi
Attorneys for Clean Elections Institute Inc., Michael J. Valder
and Lydia Guzman

James P. Walsh, Acting Attorney General                               Phoenix
     by Jessica G. Funkhouser, Special Counsel
         Diana L. Varela, Assistant Attorney General
Attorneys for Janice Brewer

Gammage & Burnham                                        Phoenix
     by Lisa T. Hauser
         Cameron C. Artigue
Attorneys for No Taxpayer Money For Politicians, Eric Crown and
Lettie Phillips

Coppersmith Gordon Schermer Owens & Nelson P.L.C.                     Phoenix
     By   Andrew S. Gordon
Attorneys for Amicus Curiae Arizona Corporation
Commissioners/Candidates for the Arizona Corporation
Commission

Irvine Law Firm, P.A.                                    Phoenix
     by   Thomas K. Irvine
Attorneys for Amicus Curiae Hon. Raul H. Castro
_______________________________________________________________

M c G R E G O R, Vice Chief Justice

¶1          In November 1998, the voters of Arizona adopted the

Citizens    Clean   Elections   Act    (the     Act),    later    codified    as

Arizona Revised Statutes (A.R.S.) §§ 16-940 to 16-961 (Supp.

2003).     In June 2004, a group known as No Taxpayer Money for

Politicians filed initiative petition signature sheets seeking

to qualify Proposition 106 for the 2004 general election ballot.

The plaintiffs brought this action to enjoin the Secretary of

State from certifying Proposition 106.           Following a hearing, the

superior    court   concluded   that       Proposition   106     violated    the




                                       2
“separate    amendment     rule”1   of   Article   21,   Section   1,    of   the

Arizona     Constitution     because      it   incorporates   two       separate

constitutional amendments.          For that reason, the court ordered

that the matter not be certified and placed on the ballot.                     On

August 12, 2004, we entered an order affirming the judgment of

the superior court, with this opinion to follow.

                                         II.

¶2          Whether an initiative violates the separate amendment

rule presents a question of law, which we review de novo.                      See

Hohokam Irrigation & Drainage Dist. v. Ariz. Pub. Serv. Co., 204

Ariz. 394, 397 ¶ 5, 64 P.3d 836, 839 (2003).

                                         A.

¶3          The Arizona Constitution includes two provisions often

loosely referred to as adopting a “single subject rule.” The

first, Article 4, Part 2, Section 13, sets out the rule that

applies uniquely to statutes enacted by the legislature.2                     That

provision states:

            Every Act shall embrace but one subject and
            matters properly connected therewith, which
            subject shall be expressed in the title; but
            if any subject shall be embraced in an Act

1
     Although this Court has referred to Article 21 as setting
out a “single subject rule,” its language can better be
described as setting out a “separate amendment rule,” and we
will use that term in this opinion.
2
     Article 4 does not apply to laws adopted by initiative.
Citizens Clean Elections Comm’n v. Myers, 196 Ariz. 516, 524 ¶
35, 1 P.3d 706, 714 (2000).

                                         3
              which shall not be expressed in the title,
              such Act shall be void only as to so much
              thereof as shall not be embraced in the
              title.

Ariz. Const. art. 4, pt. 2, § 13.

¶4            The purpose of this single subject provision is to

prevent surprise and the evils of surreptitious or hodgepodge

legislation, including the practice known as logrolling.                                Taylor

v. Frohmiller, 52 Ariz. 211, 215-16, 79 P.2d 961, 963 (1938).

Although this provision does not require that the “title of the

act should be a complete index to the legislation contained

therein,” id. at 216, the title of an act “should not be so

meager as to mislead or tend to avert inquiry as to the context

thereof . . . .”          Dennis v. Jordan, 71 Ariz. 430, 439, 229 P.2d

692, 697-98 (1951).             To allow the legislature freedom to act,

while      enforcing       the     command          of        this        provision,        our

interpretation       of   the    single      subject          rule   must     be   not      “so

narrowly    technical      on    the   one       side    so    as    to    substitute       the

letter for the spirit, or so foolishly liberal on the other as

to   render    the    constitutional         provision          nugatory       .   .    .    .”

Taylor, 52 Ariz. at 217, 79 P.2d at 964.                        Under this provision,

we      construe     legislation          liberally            in     favor        of       its

constitutionality.         See White v. Kaibab Rd. Improvement Dist.,

113 Ariz. 209, 212, 550 P.2d 80, 83 (1976).




                                             4
¶5        The constitutional language also directs that “if any

subject shall be embraced in an Act which shall not be expressed

in the title, such Act shall be void only as to so much thereof

as shall not be embraced in the title.”    Ariz. Const. art. 4,

pt. 2, § 13.    Thus, if one portion of a statute violates the

single subject rule, “only that part which is objectionable will

be eliminated and the balance left intact.”3   State v. Coursey,

71 Ariz. 227, 236, 225 P.2d 713, 719 (1951); see also Citizens

Clean Elections Comm’n v. Myers, 196 Ariz. 516, 522, 1 P.3d 706,

712 (2000) (stating that unconstitutional provision of act was

severable from remainder of act).4

                               B.

¶6        In contrast, the Arizona Constitution establishes a

stricter test for determining whether a proposal involves more

than one constitutional amendment.   See Ariz. Const. art. 21, §




3
      To determine whether the court can sever the offending
portion of a statute, we consider “whether the valid portion can
operate without the unconstitutional provision and, if so, we
will uphold it unless the result is so absurd or irrational that
one would not have been adopted without the other.”      Citizens
Clean Elections Comm’n, 196 Ariz. at 522, 1 P.3d at 712.
4
     The saving measure of severance responded to the concern,
as expressed by some framers of the Arizona Constitution, that
the single-subject provision established “a handle or a string
upon   every   law   by   which  the  court  can   declare  it
unconstitutional.”    Statement of Fred L. Ingraham (Nov. 23,
1910), in The Records of the Arizona Constitutional Convention
of 1910, at 590 (John S. Goff ed.).

                                5
1 (Article 21).      In language distinguishable from that used to

describe the single-subject rule, the constitution provides:

             If more than one proposed amendment shall be
             submitted at any election, such proposed
             amendments shall be submitted in such manner
             that the electors may vote for or against
             such proposed amendments separately.

Ariz. Const. art. 21, § 1.

¶7           The clear import of this provision is that voters must

be allowed to express their separate opinion as to each proposed

constitutional     amendment.      The        separate    amendment     rule     of

Article 21 differs from the single-subject rule of Article 4 in

two important respects.         First, although statutes comply with

the single-subject rule if they “embrace but one subject and

matters properly connected therewith,”               Article 21 includes no

reference to matters “connected with” a proposed constitutional

amendment.      Simply showing that several sections of a proposed

amendment relate to the same general subject as that expressed

in the title of the proposed amendment does not satisfy the

requirements of Article 21.        Instead, Article 21 requires that

each proposed amendment “shall be” presented in a manner that

allows   the   voters   to   consider       and   vote   for   or   against    each

amendment separately.

¶8           Second, unlike the single-subject provision of Article

4, Article 21 does not permit the court to sever an offending

provision from a multiple-proposal constitutional amendment.                    See


                                        6
Taxpayers Prot. Alliance v. Arizonans Against Unfair Tax Schemes,

199 Ariz. 180, 182 ¶ 7, 16 P.3d 207, 209 (2001) (holding that

court has no authority to sever sections of a proposed amendment

to the constitution).                Instead, if a proposal includes more than

one      amendment,        the        entire        proposal        falls        within       the

constitutional prohibition.

¶9           The     distinctions          between        Article      4   and    Article      21

reflect     the      unique      position       and   importance           of    the    Arizona

Constitution in state governance.                     The constitution provides a

statement       of    basic      principles         that     inform        and   define       the

foundation of the state’s laws.                     See Miller v. Heller, 68 Ariz.

352, 357, 206 P.2d 569, 573 (1949) (“The constitution of this

state, second only to the constitution of the United States, is

the supreme law of Arizona.”); see also Cecil v. Gila County, 71

Ariz.    320,     322,    227    P.2d      217,     218    (1951)      (stating        that   the

Arizona Constitution is basic law); see also John D. Leshy, The

Making of the Arizona Constitution, 20 Ariz. St. L.J. 1, 112

(Spring 1988) (“[O]ne thing about the intent of the framers of

the     Arizona      Constitution          is   absolutely        clear      -   they     fully

expected the document they crafted to be the primary charter of

state    government        and       the   primary        check   on       it.”).       If    the

principles      set      out    in    this      fundamental       document        are    to    be

changed by a vote of the people, the voters must receive the




                                                7
opportunity to express their opinion clearly as to each proposed

change.

¶10            When       a   proposed   amendment         consists        of    multiple

provisions,         the   proposal   constitutes       one    amendment         under   the

terms     of    the       constitution      only      if     its   provisions           “are

sufficiently related to a common purpose or principle that the

proposal can be said to constitute a consistent and workable

whole on the general topic embraced, that, logically speaking,

should stand or fall as a whole.”                 Kerby v. Luhrs, 44 Ariz. 208,

221, 36 P.2d 549, 554 (1934) (emphasis added).

¶11            Under the “common purpose or principle test,”

        [i]f any one of the propositions, although not
        directly contradicting the others, does not refer to
        such matters, or if it is not such that the voter
        supporting it would be expected to support the
        principle of the others, then there are in reality two
        or more amendments to be submitted, and the proposed
        amendment falls within the constitutional prohibition.

Id.

¶12            To    determine    whether       the   provisions      of    a    proposed

amendment meet the common purpose or principle test, we consider

objective factors such as

        whether various provisions are facially related;
        whether all the matters addressed by an initiative
        concern a single section of the constitution; whether
        the voters or the legislature historically has treated
        the matters addressed as one subject; and whether the
        various provisions are qualitatively similar in their
        effect on either procedural or substantive law.




                                            8
Korte v. Bayless, 199 Ariz. 173, 177 ¶ 11, 16 P.3d 200, 204

(2001) (citations omitted).




                                         III.

                                           A.

¶13            To    measure    Proposition      106       against          the   dictate    of

Article 21, we first describe briefly the Clean Elections Act,

which     Proposition       106    is    intended          to     affect.           The     Act

established          the   Citizens      Clean       Election           Commission         (the

Commission).         A.R.S. § 16-955.           The Act assigns the Commission

many duties related to the conduct of public elections, but

three    are    paramount.        First,    the      Commission             administers     the

public    funding      provided    under       the    Act       for    the    campaigns      of

participating candidates.           Id. § 16-951.               Second, it administers

a     voter    education       program   and     provides             for    debates      among

candidates.5          Id. § 16-956.A.1 and A.2.                 Third, the Commission

enforces       the   provisions    of    Title       19,    Chapter          6,   Article    2,


5
     According to the record in this case, the Commission will
spend $1,258,541.25 in 2004 to publish and distribute voter
guides.    In 2002, the last complete election cycle, the
Commission spent $1,601,437 for voter education. See 2002 Annual
Report of the Clean Elections Commission, at 34, available at
http://www.ccec.state.az.us/ccecscr/pub/pdfPub.asp?docName=2002%
20Annual%20Report&docFile=ccec_ar2002.pdf.



                                           9
dealing with administration and enforcement.6                   Id. § 16-956.A.7.

The latter two categories do not relate to the public financing

of political campaigns.               Rather, they address voter education

and require that the Commission enforce measures such as (1)

statutory limits on acceptance of campaign contributions, which

limits apply to candidates not receiving public funding, § 16-

941.B.1, (2) requirements concerning reporting of contributions

by candidates who do not receive public funding, § 16-941.B.2,

(3) requirements that those making independent expenditures file

periodic     reports,      §    16-941.D,       and    (4)   provisions    allowing

candidates to agree jointly to restrict campaign expenditures, §

19-941.C.1.       Nothing in Proposition 106 alters these statutory

duties.        The      Commission,        therefore,        would    retain    full

enforcement authority and responsibility as to these provisions

even   if   the   voters       abolished    public       financing    of   political

campaigns.

¶14          Under   the       Act,   campaign        funding   for   participating

candidates, as well as funding for the Commission to carry out

its various duties, comes not from the general fund, but rather

from the Clean Elections Fund (the Fund), which receives monies

from a variety of explicitly dedicated sources.                       Any taxpayer

may contribute five dollars to the Fund by marking an optional

6
     In 2002, the Commission spent $845,141 on administration
and enforcement. See 2002 Annual Report at 34.


                                           10
check-off box on his or her Arizona income tax form.                                Taxpayers

who   do   so   receive       an    equal      tax   credit.7            Id.   §    16-954.A.

Taxpayers also may donate taxes owed the state to the Fund, in

an amount up to twenty percent of the tax owed, or five hundred

dollars per taxpayer, whichever is higher.8                              Id. § 16-954.B.

Finally,   the     Act      imposes       a   surcharge      of    ten    percent     on    all

criminal and civil fines and penalties, the proceeds of which

are deposited into the Fund.9                 Id. § 16-954.C.

¶15          The      Act    also        places     limits        on    monies      that     the

Commission      may    spend       and    defines     the     expenditures          that    the

Commission must or may make.                  The Act caps the total amount the

Commission may spend each year at five dollars for each state

personal income tax return filed by an Arizona resident during

the previous calendar year.                    Id. § 16-949.A.             The Commission

“may use” up to ten percent of this amount for administrative

and regulatory expenses.                 Id. § 16-949.B.               Any portion of the

ten percent not used for these purposes remains in the Fund.

Id.   The Act also instructs that the Commission “shall apply”



_____________________
7
     In 2002, the Commission received $3,254,258                                   from    such
check-offs. See 2002 Annual Report at 32.
8
     In 2002, the Commission received                              $98,688         from     such
donations. See 2002 Annual Report at 32.
9
     In 2002, the Commission received $6,252,944 in                                       fines,
forfeitures and penalties. See 2002 Annual Report at 32.

                                               11
ten percent of the money collected pursuant to section 16-949.A

to voter education.       Id. § 16-949.C.

¶16        At least once each year, the Commission must project

the amount of money it will collect over the next four years.

Id. § 16-954.D.      Then, assuming it will spend the maximum amount

allowed   by    section   16-949.A,    the     Commission   designates     any

projected surplus as excess funds, which return to the state’s

general fund.     Id. § 16-954.D.

                                      B.

¶17        We apply the common purpose or principle test of Korte

and Kerby to the operative sections of Proposition 106.                  If we

cannot    conclude   that    the   provisions     should    stand   or    fall

together or that a voter supporting one would reasonably be

expected to support the principle of the other, we are obliged

to find that Proposition 106 violates the separate amendment

rule of Article 21.

¶18        Section    A     of   Proposition     106   states   that     “[n]o

taxpayer money10 shall be used to fund any political candidate or


10
     Section B of Proposition 106 broadly defines “taxpayer
money” as “any tax, fee, assessment, surcharge, forfeiture,
penalty, fine, other revenue or funds collected by the state, a
political subdivision, department, agency or instrumentality of
the state, city or town” or “any contribution, donation or
expenditure that is eligible for a state tax reduction,
deduction, exemption, exclusion, credit, donation, check-off or
other tax feature.”     The definition effectively includes all
money currently used to fund the Commission, regardless whether
it comes from taxpayers.

                                      12
campaign for statewide office or the office of a member of the

legislature.”           The purpose underlying section A seems clear:

this provision seeks to end public funding of statewide and

legislative campaigns.                 The section uses clear and sufficient

language to accomplish its purpose:                     If the voters were to adopt

this    language,       the      Arizona    Constitution         would      forbid     public

funding of campaigns, and those portions of the Clean Elections

Act that require such funding would violate the Constitution

and,    hence,     be       unenforceable.           Voters      who     agree   with       the

principle that Arizona should not provide public funding for

campaigns presumably would support this provision.

¶19            Section C of Proposition 106 provides that “all money

in [the Clean Elections Fund], on and after the effective date

of this section, shall be deposited in the general fund of the

state.”        This language dramatically changes the funding source

for the Clean Elections Commission by sweeping funds dedicated

by the voters to the Commission into the state’s general fund.

Under    the    Act     as    adopted      in   1998,     and    subject      only   to     its

limitations, the Commission independently decides how to spend

the monies in the Fund and how much to spend on particular

activities.           See    ¶   15,    supra.       By   virtue       of    section    C    of

Proposition 106, the Commission, rather than being funded from

an    established,       dedicated       source,     will       become      dependent     upon

legislative appropriations from the general fund to support all


                                                13
Commission duties unrelated to public campaign financing.                                In

short, section C strips the Commission of its independence from

legislative appropriation and renders it subject to legislative

control of its budgeting decisions.

¶20         No facial relationship exists between sections A and

C, and the sections advance no common purpose or principle.

The purpose of section C, unlike that of section A, cannot be to

eliminate    public   funding          of    political         campaigns:      Section    A

accomplishes that purpose.              Nor can the purpose of section C be

simply to assure that dollars no longer used for public funding

of political campaigns be returned to the general fund.                          Section

16-954.D of the Act as it presently exists already requires the

periodic return of excess funds to the general fund and, in

addition, the impact of section C is not limited to funds that

previously    might       have        been    used       for     political    campaigns.

Rather, section C reverts the entirety of all monies deposited

in the Fund to the general fund.

¶21         One    purpose       of    section       C    must    be   to    deprive   the

Commission    of    its    authority          to     make       independent    budgeting

decisions by changing the funding source for the Commission and,

concomitantly, to increase the amount of monies that go into the

general fund.11       Therefore, no common purpose joins sections A


11
     The initiative description prepared by the proponents of
Proposition 106 suggests that increasing the general fund is at

                                             14
and C.     Nor can we conceive of a common principle that underlies

the two provisions.            The question posed by section C, whether

Arizona’s voters would choose to change the funding source for

the   Commission       and     make        the    Commission         dependent     upon     a

legislative     appropriation          to    carry      out    its   remaining        duties,

involves a principle quite different from the question posed by

section A, whether the voters would choose to end public funding

for political campaigns.

¶22          The proponents of Proposition 106 argue that, whatever

the language of section C, the effect of that section will be

negligible.        They      point     out       that    the    Clean     Elections       Act

mandates that the Commission devote ten percent of the amount

derived    under      A.R.S.     §     16-949.A         to     its     duties    of     voter

education.      Id. § 16-949.C.             Therefore, the proponents conclude,

the legislature could not appropriate less than the mandated

amount    for   the   Commission’s           voter      education      activity.        Even

assuming    arguendo      that       the    proponents        are    correct,    the     fact

remains    that    section       C    changes      the       funding    source    for     the

Commission’s enforcement and administrative duties.                              Under the

terms of the Act, the Commission may use “up to ten percent” of

_____________________
least one purpose of section C. The description, after setting
out the amount of money spent under the Clean Elections Act in
2002, stated:     “With severe budget cutbacks an unfortunate
reality, this $13 million is better spent on education,
healthcare for seniors, and other essential services.” Petition



                                             15
the amount defined by section 16-949.A for its administrative

and enforcement duties.          Id. § 16-949.B.         As adopted by the

voters, the Act gave the Commission discretion to decide how

much to spend for administration and enforcement, subject only

to the limitation that the amount could not exceed ten percent

of the available monies.

¶23           Section      C     transfers     that      decision     to      the

legislature, thereby divesting the Commission of its authority

to make independent funding decisions.                It thus represents an

important change to the existing statutory scheme:                  Whereas the

Commission     now   can   itself    decide     how     much   to    spend     on

enforcement     of   election     laws,      under    Proposition     106     the

Commission would be required to apply to the legislature for

funds to fulfill its enforcement duties, even though the members

of    the   legislature    are    always     potential    targets     of     such

enforcement efforts.       Arizona’s voters surely could adopt such

an approach.     But because the proposition advanced by section C

rests upon a principle quite different from that advanced by

section A, Article 21 requires that the voters be afforded the

opportunity to consider a constitutional amendment that presents

only that decision, not an amendment that joins the separate




_____________________
Signature Sheets for Proposition 106, filed with the Arizona
Secretary of State.

                                      16
question       of   whether     Arizona      should    publicly        fund   political

campaigns.

                                             C.

¶24            Section    C    of    Proposition      106   furthers      yet    another

purpose, also unrelated to the purpose and principle underlying

section A.          When the voters adopted the Clean Elections Act,

they approved a surcharge on all criminal and civil fines and

penalties and dedicated those funds to specific purposes defined

in the Act.12           A.R.S. § 16-954.C.            As noted above, section C

would transfer those previously dedicated funds to the state

general fund.        Article 21 requires that we ask whether a common

principle      supports       both   the     proposition      that     Arizona    should

prohibit       public    financing      for       political      campaigns      and     the

proposition that Arizona should impose a significant surcharge

on civil and criminal fines to support the general fund.

¶25            We   cannot     conclude      from   any     objective     factor      that

voters favoring one proposition would likely favor the other.

No    common    principle      makes    it    likely      that   one    who     votes   to

abolish public financing of political campaigns also would vote




12
     During 2002, the surcharge accounted for approximately
sixty-two percent of the dedicated funds that the Commission
received. See 2002 Annual Report at 34.



                                             17
to retain a surcharge that provided taxpayer money, as defined

in Proposition 106, for those campaigns.13

¶26       The voters, of course, retain the right to continue

the surcharge and to allow the funds previously dedicated to the

Commission to be diverted to the general fund.     If the voters

are to be asked to approve the use of this surcharge to increase

the general fund, however, they must be given the opportunity to

express their opinion through a separate proposed amendment.

                               IV.

¶27       For the forgoing reasons, we affirm the judgment of

the Superior Court.



                         _____________________________________
                         Ruth V. McGregor, Vice Chief Justice

CONCURRING:


_________________________________
Charles E. Jones, Chief Justice




13
     A previous initiative measure adopted by Arizona’s voters
strongly suggests that this state’s voters prefer to directly
express their views concerning the use of dedicated funds
established by the voters.     In 1998, the voters amended the
Arizona Constitution to provide that the legislature may
“appropriate or divert funds allocated to a specific purpose by
an initiative measure approved by a majority of the votes cast
thereon” only if the diversion or appropriation of funds
furthers the purposes of the initiative and only if approved by
a vote of three-fourths of the members of the legislature.
Ariz. Const. art. 4, pt. 1, § 1(6)(D).


                                18
_________________________________
Rebecca White Berch, Justice


_________________________________
Michael D. Ryan, Justice


__________________________________
Andrew D. Hurwitz, Justice




H U R W I T Z, Justice, concurring:

¶28         The   opinion    of    the    Court   faithfully    summarizes      and

correctly    applies      our     precedents      concerning    the       “separate

amendment    rule”   in     Article      21,   Section   1     of   the    Arizona

Constitution.     The opinion is particularly useful in emphasizing

the differences between this constitutional provision and the

“single subject” rule applicable to legislation in Article 4,

Part 2, Section 13.       Op. ¶¶ 3 - 9.14

¶29         While I join the Court’s opinion, I have substantial

doubts about the continued utility of the “common principle or

purpose test” derived from Kerby v. Luhrs, 44 Ariz. 208, 36 P.2d

549 (1934), and its progeny.             Because that test in part turns on

14
     Because even the more lenient “single subject” rule of
Article 4, Part 2, Section 13 does not apply to legislation
proposed by initiative, Citizens Clean Elections Comm’n v.
Myers, 196 Ariz. 516, 524 ¶ 35, 1 P.3d 706, 714 (2000), it is
clear that if Proposition 106 had offered legislation, rather
than a constitutional amendment, the multiple subjects in the



                                         19
a judicial determination of whether a voter supporting one part

of    a   proposed       amendment       would       “be       expected     to     support        the

principle     of     the    others,”       id.       at       221,   36   P.2d     at   554,       it

involves the Court in a prediction of voter preferences and

behavior that is often somewhat subjective and that will subject

most proposed multi-faceted constitutional amendments to attack.

¶30           It    may    well     be    that       a    different        approach         to    the

separate      amendment      rule        would       provide         greater     certainty        in

interpretation           while    still       achieving          the      critical      goal       of

Article 21, Section 1 – making sure that when voters are asked

to    amend   the    Constitution,            what       is    before     them   is     a    single

amendment,     not        several    distinct            proposals        lumped      under       one

heading.           For    example,       an    approach          that      focused      on       such

objective factors as whether one proposal logically follows from

another and is necessary for the practical implementation of the

first might well provide more predictable adjudication.

¶31           The parties to this case, however, did not argue that

we should apply anything but the traditional Kerby test, and I

am reluctant to consider altering our traditional approach in

the absence of briefing and argument on the subject.                                        For the

reasons stated by the Court, Proposition 106 fails the Kerby




_____________________
proposal would not have barred its placement on the general
election ballot.

                                               20
test, and I therefore leave for another day whether that test

should continue to govern our separate amendment jurisprudence.


                         _______________________________________
                         Andrew D. Hurwitz, Justice




                               21
