Arizona Court of Appeals Division One Holds: Article 9, Section 22(D) of the Arizona Constitution Does Not Grant Sole Authority to the Legislature to Determine when a Supermajority Vote is Required to Increase Existing Taxes or Impose New Taxes; the Legislators Had Standing to Challenge whether Their Votes Were Given the Effect to Which They were Constitutionally Entitled; and Constituents, Including Taxpayers, Did Not Have Standing to Challenge the Constitutionality of A.R.S. § 36-2901.08.

House Bill 2010 § 5, which created A.R.S. § 36-2901.08, was passed in the Arizona Legislature by a simple majority and was signed into law in June 2013.  Section 36-2901.08, in part, authorizes the director of AHCCCS to establish and collect an assessment on hospital revenues for the purpose of funding the non-federal share of the costs.  Various plaintiffs, including several state legislators, two constituents whose representatives voted against the bill, and a taxpayer challenged the bill arguing that the bill imposes a new tax and therefore must be passed by a two-thirds supermajority in according with Article 9, Section 22 of the Arizona Constitution.  Defendants moved to dismiss for lack of standing and because Article 9, Section 22 gives the Legislature the authority to decide when a bill is subject to a supermajority requirement.  The trial court granted the motion and plaintiffs filed a special action, which the Court of Appeals accepted.

Defendants argued that under section 22(D) of Article 9, which states “[E]ach act to which this section applies shall include a separate provision describing the requirements for enactment prescribed by this section,” the decision whether to include such language in a bill is an official decision of each legislative chamber and is a political question that cannot be reviewed by the courts.  The Court of Appeals rejected this argument, explaining that subsection (D) requires that if a bill increases revenues under subsection (B) that a separate provision must be added to the bill’s language that denotes that the bill is subject to the supermajority requirement.  Article 9, Section 22(A)-(C) acts as a limiting power on the Legislatures ability to raise revenue, and to allow a bare majority to decide under subsection (D) whether a measure is subject to the supermajority requirement eliminates Article 9, Section 22’s limit on the Legislature. 

The Court of Appeals then addressed the arguments regarding plaintiffs’ standing to bring suit.  As to the Legislators, the Court of Appeals explained that while legislators generally do not have standing to sue, the plaintiff legislators had standing because, if HB 2010 constitutionally required a supermajority, the plaintiff legislators experienced a constitutional overriding that held their votes for naught.  As to the constituents, the Court explained that because the bill does not directly apply to them and they are fully represented in the legislature, they have no distinct and palpable injury to support standing.  And the taxpayer plaintiff did not have standing under A.R.S. §§ 35-212(A) and 35-213 because HB 2010 does not have an express expenditure power and the collection of funds authorized by the enacted statute did not establish any identifiable payment that may be prevented or recovered by the taxpayer. 

Presiding Judge Gemmill authored the opinion; Judges Howe and Swann concurred.