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Fairness and Accountability v. Greene12/15/1994
civil actions against public entities); 1994 Ariz. Sess. Laws ch. 154 (immunizing from civil liability anyone who without malice files a report with insurance fraud unit) Lawyers and Judges may dispute the scope of statutory control that art. 18, § 6 permits, but that does not mean there is none. To the extent the analysis suggests that no such power currently exists over any civil action, it does not impartially describe the initiative.
The assertion that the initiative "amends the Arizona Constitution to allow people" to control civil lawsuits and damage awards also crosses well past the blurry line between impartiality and advocacy. The people themselves already have the ability to control, and even abolish, civil actions and damages. The source of this power, indeed, is the very same initiative procedure utilized by People and other Proposition 103 supporters. See Ariz. Const. art. 4, pt. 1, §§ 1 and 2. A disinterested analysis would not suggest the creation of a power that already exists.
The initiative does substantially increase the legislature's power over civil injury actions. An impartial description, however, requires a more frank recognition that the amendment does more than allow the legislature to "control civil lawsuits" and the "amount of compensation awarded." The essence of art. 18, § 6 is its prohibition against abolishing injury actions. Proposition 103 goes beyond conferring additional power to regulate -- in removing the abrogation prohibition it permits the legislature to entirely abolish causes of action for injury. The adopted analysis subjectively minimizes this important effect.
Finally, we note that the challenged summary makes no mention of the proposed changes to art. 18, § 5 concerning contributory negligence and assumption of risk. If, as here, an initiative amends a small number of distinct constitutional provisions, an impartial analysis and description must include some reference to each of the affected provisions. See Baker v. Keisling, 312 Ore. 385, 822 P.2d 1162, 1167 (Or. 1991) (omitting reference to major effect of one of three initiative provisions not a "concise and impartial" summary).
We conclude, therefore, that the initiative summary adopted by the Council was not an impartial analysis and description as required by A.R.S. § 19-124(B) . It was advocacy -- argument -- and therefore did not comply with the statute's requirement.
C. The Appropriate Remedy
Although FAIR argued that it would be appropriate for this court to strike Proposition 103 from the general election ballot due to noncompliance with § 19-124(B) , it asked us only to order the Council to draft a truly impartial analysis or, preferably, to adopt the original staff summary. FAIR claims that Kerby established removal from the ballot as a proper remedy for violations of statutory procedure concerning initiative publicity pamphlets. This case differs markedly from Kerby, however, in which passage of time rendered compliance with the applicable statutes impossible. Here, in contrast, sufficient time remained after our order for the Council and secretary of state to comply with A.R.S. §§ 19-123 and 19-124. We do not decide, therefore, under what circumstances removal from the ballot might be appropriate.
The legislature has directed the legislative council to prepare an impartial analysis and description of initiatives in time for the secretary of state to ensure their distribution at the primary election. A.R.S. §§ 19-123 and 19-124. This court's role in
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