Gallardo v. Arizona (7/23/2014)

August 11, 2014

Arizona Court of Appeals Division One Holds That a Statute Applicable Only to Counties with Populations Greater Than Three Million Is a Special Law in Violation of the Arizona Constitution.

There are ten community college districts in Arizona, each governed by a board of five members elected from separate precincts within the district.  The state legislature amended the statute governing the composition of community college district boards, A.R.S. § 15-1441(A), so that “a county with a population of at least three million persons shall elect two additional governing members from the district at large.”  Maricopa County is the only county in Arizona with more than three million people.  Several plaintiffs filed a complaint seeking a declaration that the amendment violated the Arizona Constitution, which states that “[n]o local or special laws shall be enacted in . . . . [t]he conduct of elections.”  Ariz. Const. Art. 4, Pt. 2, § 19(11).  The plaintiffs submitted an uncontroverted expert report stating that twelve of the state’s fifteen counties were not expected to reach a population of three million people in the next five hundred years, and that Pima and Pinal counties would likely not reach that population-level until the 22nd century, if ever.  The trial court upheld the law’s constitutionality, and the plaintiffs appealed.

The Arizona Court of Appeals reversed.  The Court applied the Arizona Supreme Court’s three-part test for determining whether a law violates the constitution’s special law provision, which states that “[l]egislation does not violate the special law prohibition if (1) the classification is rationally related to a legitimate governmental objective, (2) the classification is legitimate, encompassing all members of the relevant class, and (3) the class is elastic, allowing members to move in and out of it.  Long v. Napolitano, 203 Ariz. 247, 253, ¶ 14, 53 P.3d 172, 178 (App. 2002) (citing Republic Inv. Fund I v. Town of Surprise, 166 Ariz. 143, 149, 800 P.2d 1251, 1257 (1990)).  The Court of Appeals held that the legislature’s amendment was unconstitutional because it failed the third part of the test, which requires elasticity.  To meet the elasticity requirement, entry into the class must “be not only possible but reasonably probable, of attainment” (quoting Republic Inv., 166 Ariz. at 150, 800 P.2d at 1258).  The statute’s three-million-inhabitant requirement failed the elasticity test “[b]ecause the likelihood that any county other than Maricopa will reach a population of three million is merely theoretical.”  It was, therefore “not reasonably probable that any other community college districts will be able to enter the class.”  Accordingly, the Court held that the legislature’s amendment was a “special law in violation of the Arizona Constitution.”  Acknowledging that “no specific parameters exist for determining the likelihood that potential members of a particular class will reach a specific population threshold,” the Court of Appeals further stated that additional guidance from the Arizona Supreme Court “would be helpful in the appropriate case.”

Judge Randall M. Howe specially concurred in the decision.  He stated that the Court of Appeals has been “inconsistent with its interpretation of the ‘theoretical and not probable’ language” of the elasticity test, such as an earlier case where the Court of Appeals upheld a law that only applied to counties with populations greater than two million.  He pointed out that “left unaddressed today is what time frame the legislature may rely upon to establish” acceptable population thresholds, but that determining such time frames “is an issue only the supreme court can resolve.”

Presiding Judge Brown authored the opinion of the Court.  Judge Kessler concurred, and Judge Howe specially concurred.