IN THE



## S UPREME 

## C OURT OF THE 

## S TATE OF 

## A RIZONA

A RIZONA F REE E NTERPRISE C LUB , ET AL ., Plaintiffs/Appellant s,

v.

K ATIE H OBBS , IN HER CAPACITY AS THE
S ECRETARY OF S TATE OF A RIZONA , ET AL

. Defendan t/Appellee,

and

I NVEST IN A RIZONA (S PONSORED BY AEA AND S TAND FOR C HILDREN ),

A P OLITICAL COMMITTEE , Real Party in Interest/Appellee

.

No

. CV -21-0304- AP/EL

Filed August 19, 2022

Appeal from the Superior Court in Maricopa County

The Honorable Katherine M. Cooper

, Judge

No. CV2021-011491

CV2021-016143 (Consolidated)

REVERSED AND REMANDED

COUNSEL :

Kory Langhofer (argued), Thomas Basile, Statecraft PLLC, Phoenix, Attorneys for Arizona Free Enterprise Club, Scot Mussi, and Diane Schafer

Spencer Scharff, Scharff PLC, Phoenix, Attorney for Katie Hobbs

Roopali H. Desai, D. Andrew Gaona (argued), Kristen Yost, Coppersmith
Brockelman PLC, Phoenix, Attorneys for Invest in Arizona (Sponsored by AEA and Stand for Children)ARIZONA FREE ENTERPRISE CLUB, ET AL

. V

. HOBBS, ET AL

. Opinion of the Court

2 Timothy Sandefur, Scharf

- Norton Center for Constitutional Litigation at

t he Goldwater Institute, Phoenix, Attorneys for Amicus Curiae Goldwater

Institute

Daniel J. Adelman, Samuel Schnarch, Arizona Center for Law in the Public
Interest, Phoenix; and Erin Adele Scharff, Phoenix, Attorneys for Amicus

Curiae Arizona Center for La w in the Public Interest

Mark Brnovich, Arizona Attorney General, Joseph A. Kanefield, Chief Deputy and Chief of Staff , Brunn (Beau) Roysden, III, Solicitor General,

Michael C atlett, Deputy Solicitor General

, Jillian Francis, Assistant Attorney General, P hoenix, Attorneys for Amicus Curiae Arizona Attorney

General Mark Brnovich

JUSTICE LOPEZ authored the O pinion of the Court, in which CHIEF JUSTICE B RUTINEL

, VICE CHIEF JUSTICE TIMMER

, and JUSTICES

BOLICK an d KING joined. JUSTICE MONTGOMERY, joined by JUSTICE
BEENE, concurr ed in part and dissent ed in part

.

JUSTICE LOPEZ , O pinion of the Court:

¶1 We explain today the reasons for our prior decision order disqualifying Real Party i n Interest Invest in Arizona ’s (“ IIA”) referendum petition see king to refer Senate Bill 1828—s ections 13 and 15

— (“SB 1828”)
to the ballot in the November 8, 2022 G eneral E lection. We con clude the exemption from the referendum power for laws “for the support and maintenance of the departments of the state government and state institutions,” Ariz. Const. art. 4, pt. 1, § 1(3), applies to tax revenue

measures

. A revenue measure is exempt from referendum , regardless of
the increase or decrease in revenue, provided it is for the support and

maintenance of existing depart ments of the state government and state

institutions.

BACKGROUND

¶2 SB 1828 was passed during the First Regular Session of the Fifty

- Fifth Arizona Legislature and signed by the Governor as a tax bill for the 2022 fiscal year

. SB 1828 i mpose s a “flat” tax of 2.5% on taxable income

but becomes effective only if the state General Fund revenues reach specified targets. SB 1828 was enacted in response to the Invest inARIZONA FREE ENTERPRISE CLUB, ET AL

. V

. HOBBS, ET AL

. Opinion of the Court

3 Education Act (“Prop 208”), which would have imposed an income tax surcharge of 3.5% on taxabl e income over $250,000 for single filers or filers who are married but filing separately, and $500,000 for married and head

of household filers. 1 The parties agree that SB 1828 ’s immediate effect likely

w ould be to reduce the state’s income tax revenue by reducing income tax liability to households subject to Prop 208.

¶3 IIA sought to prevent implementation of the flat tax by referring SB 1828 to the ballot in the November 8, 2022 G eneral E lection. On July 21, 2021, Appellants Arizona Free Enterprise Club, et al. (“Free Enterprise”) filed a motion for preliminary injunction in Maricopa County Superior Court seeking to enjoin the Secretary of State from accepting or certifying any petition filed in su pport of a referendum of SB 1828, including IIA’s petition

. Free Enterprise challenge d the referendum on two grounds : the Arizona Constitution exempts SB 1828 from referendum

, and the petition sheets and signatures are statutorily deficien t. IIA moved to dismiss Free Enterprise’s challenge.

¶4 On December 20, 202 1, the trial court ruled that SB 1828 is

referable and , thus, may be submitted to the voters in the November 8, 2022

General Election. The court reasoned that it did not qualify as a “support

and maintenance” measure under the Arizona Constitution because it did

not appropriate state funds or generate necessary revenue

. See Ariz. Const.

art. 4, pt. 1, § 1(3). The court denied Free Enterprise’s preliminary injunction request and granted IIA’s motion to dismiss in part, leaving the challenge based on petition deficiencies in place.

¶5 Free Enterprise directly appealed the trial court’s ruling to
this Court pursuant to Arizona Rules of Civil Appellate Procedure 10(d)(1)

. Under Rule 10 , a party may take a direct appeal “ if the judgment involves a statewide initiative or referendum, the issue on appeal is of substantial statewide importance, and the issue otherwise would become moot before Supreme Court review. ” T his case requires us to interpret article 4, part 1,

sectio n 1(3) of the Arizona Constitution (“sec tion 1(3)”) and the referendum

power , both issue s of statewide importance that would become moot if this

Court ’s review were delayed until after the November 8, 2022 General

1 The Maricopa County Superior Court invalidated Prop 208 in March
2022, following remand from this Court in Fann v. State , 251 Ariz. 425, 443 ¶ 65 (2021).ARIZONA FREE ENTERPRISE CLUB, ET AL

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. Opinion of the Court

4 Election

. On April 21, 2022, following oral argument, we issued a decision

order reversing the trial court’s order with a more detailed opinion to

follow

. This is that opinion. We have jurisdiction pursuant to article 6, section 5( 3 ) of the Arizona Constitution.

DISCUSSION

¶6 The three branches of government in Arizona share an equal duty in apply ing and uphol d ing our state constitution, but “our courts bear ultimate responsibility for interpreting its provisions.” Forty

- Seventh Legislature v. Napolitano , 213 Ariz. 482, 485 ¶ 8 (2006); see also Kimel v. Fla. Bd. of Regents , 528 U.S. 6 2, 81 (2000) ( “T he ultimate interpretation and determination of the [Constitution’s] substantive meaning remains the province of the Judicial Branch.”). The task before us is to interpret the text

of section 1(3) to determine its meaning and the scope of the exemption of

laws from the referendum power

. See Ariz

. Sch

. Bds

. Ass’n v. State

, 252 Ariz.

219 , 229 ¶ 45 (2022) (noting that this Court’s constitutional duty is to

inter pret and apply the constitution ).

I.

A.

¶7 The Arizona Constitution reserves the powers of initiative and referendum to the people. Ariz. Const. art 4, pt. 1, § 1 (1) . The initiative

power allows qualified electors to propose legislation. Id. § 1(2). The referendum power has two forms

— the first per mits the legislature to refer a legi slative enactment to a popular vote, and the second permits qualified electors to circulate petitions

, and refer to a popular vote

, legislation that has been enacted by the elected representatives. Id. § 1(3). Arizona ’s public policy strongly favor s the initiative and referendum processes, W. Devcor, Inc. v. City of Scottsdale , 168 Ariz. 426, 428 (1991), which compel s broad

construction of the const itutional right to referendum

. This public policy, however, is tempered by the nature of the referendum pow er

. “B ecause the referendum is an ‘extraordinary’ power that permits a ‘minority to hold up the effective date of legislat ion which may well represent the wishes of the majority,’ we require ref erendum proponents to comply strictly with applicable constit utional and statutory provisions.” Id. at 429 (internal citation omitted) ( first quoting Direct Sellers Ass’n v. McBrayer , 109 Ariz. 3, 5 (1972); and then quoting Cottonwood Dev. v. Foothills Area Coal

. , 134 Ariz. 46,ARIZONA FREE ENTERPRISE CLUB, ET AL

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. Opinion of the Court

5 49 (1982) ); see also A.R.S. § 19-101. 01 (“[T]he constitutional and statutory requirements for the referendum [must] be strictly construed . . . .”).

¶8 Section 1(3), which establishes the referendum power, is a dense provision that has befuddled our courts since its inception. See Clark v. Boy ce , 20 Ariz. 544, 546 (1919) (remarking that “we must admit that it has

cost us no little trouble to arrive at a conclusi on” concerning the interpretation of section 1(3)). Section 1(3) provides:

The second of these reserved powers is the referendum.

Und er this power the legislature, or five per centum of the qualified electors, may order the submission to the people at the polls of any measure, or item, section, or part of any measure, enacted by the legislature

, except laws immediately necessary

for the preservation of the public peace, health, or safety, or for the support and maintenance of the departments of the state government and state institutions ; but to allow opportunity for referendum pe titions, no act passed by the legislature shall be operati ve for ninety days after the close of the session of the legislature enacting such measure, except such as require earlier operation to preserve the public peace, health, or safety, or to provide ap propriations for the support and maintenance of the depart ments of the state and of state institutions ; provided, that no such emergency measure shall be considered passed by the legislature unless it shall state in a separate section why it is necessary t hat it shall become immediately operative, and shall be ap proved by the

affirmative votes of two

- thirds of the members elected to each house of the legislature, taken by roll call of ayes and nays, and also approved by the governor; and should such measure be vetoed by the governor, it shall not become a law unle ss it shall be approved by the votes of three

- fourths of the members elected to each house of the legislature, taken by roll call of ayes and nays.

(E mphasis added .)ARIZONA FREE ENTERPRISE CLUB, ET AL

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. Opinion of the Court

6 B.

¶9 We first consider whether revenue laws “for the support and maintenance of the depar tments of the state government and state

institutions” are exempt from referendum under section 1(3). The trial

court , citing Garvey v. Trew , 64 Ariz. 342, 353 (1946), ruled that SB 1828 did not qualify for exemption as an appropriation measure. In other words, the

court reasoned

, and IIA contends

, that only appropriation measure s, rather than support and maintenance revenue provisions, are exempt from the referendum process. We disagree.

¶10 “When interpreting a constitutional provision, ‘we begin with

the text,’ because it is ‘the best and most reliable index of a [provision’s] meaning.’” Fann v. State , 251 Ariz. 425, 441 ¶ 59 (2021) (alteration in original) (quoting State v. Christian , 205 Ariz. 64, 66 ¶ 6 (2003)). In discerning the text’s meaning, the most objective criterion available is the accepted meaning of the words, in context, when the provision was adopted. See Antonin Scalia & Brian A. Garner, Reading Law: The Interpretation of Legal Texts 16, 78 (2012). If the text is unambiguous, we apply its express terms without applying secondary methods of

construction. Arizonans for Second Chances, Rehab. , & Pub

. Safety v. Hobbs

, 249 Ariz. 396, 406 ¶ 28 (2020). We also afford meaning to “each word, ph rase, and sentence

. . . so that no part will be v oid, inert, redundant, or

trivial.” Id. (alteration in original) (quoting City of Phoenix v. Yates

, 69 Ariz. 68, 72 (1949 )). “An absurd construction of a constitutional provision should be avoided.” Ruth v. Indus

. Comm ’n

, 107 Ariz. 572, 576 (1971). We may examine our constitution’s history to determine the

framers’ intent. Boswell v. Phx. Newspapers, Inc. , 152 Ariz. 9, 12 (1986).

¶11 In de termining whether support and maintenance laws are
exempt under the Arizona Constitution, it is beneficial to analyze

section1(3) as containing two separate clauses . The first clause provides:

Under this power the legislature, or five per centum of the qualified electors, may order the submission to the people at the polls of any measure, or item, section, or part of a ny measure, enacted by the legislature, except laws immediately necessary for the preservation of the public peace, health, or safety, or for the support and maintenance of the departments of the state government and state institutions

.ARIZONA FREE ENTERPRISE CLUB, ET AL

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. Opinion of the Court

7 Ariz. Const. art. 4, pt. 1, § 1(3) (emphasis added). Thus, under the first
clause, laws “immedi ately necessary for the preservation of the public peace, health, or safety, or for the support and maintenance of the depa r tments of the state government and state institutions” are exempt from

referendum. Id. (emphasis added).

¶12 The second clause provides that :

to allow opportunity for referendum petitions, no act passed by the legislature shall be operative for ninety days after the close of the session of the legislature enac ting such measure, except such as require earlier operation to preserve the public peace, health, or safety, or to provide appropriations for the support and maintenance of the departments of the state and of state institutions

.

Id. (emphasis added). Thus , under the second clause, laws exempt from the ninety

- day operative delay are confined to those necessary “ to preserve the public peace, health, or safety, or to provide appropriations for the support and maintenance of the departments of the state and state institutions .” Id. (emphasis added)

.

¶13 The original draft of section 1(3)’s first clause permitted exercise of the referendum power “except as to the laws necessary for the immediate preservation of the public peace, health, or safety, and appropriatio ns for the support and maintenance of the Departments of State

and State institutions.” The Records of the Arizona Constitutional Convention of 1910 , at 1020–21 ( John S. Goff ed., 1991) (emphasis added)

. In other
words, the original language in the fir st clause mirrored that of the second

clause in that it limited the class of exempt support and maintenance laws to “appropriations. ” The version of section 1(3) that was ratified in 1912, however, omitted reference to “appropriations” in the first clause and

, instead, exempted from referendum “laws . . . for the support and maintenance of the departments of the State Government and State

institutions.” Ariz. Const. art. 4, pt. 1, § 1(3) ( emphasis added ). The

constitutional convention records do not defi nitively elucidate the

founders ’ reasoning in modifying this language in section 1(3). We are

loath , however

, to discount the founders’ decision to excise “appropriations” from the first clause of section 1(3) in favor of the ratifiedARIZONA FREE ENTERPRISE CLUB, ET AL

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. Opinion of the Court

8 iteration as a draft er ’s error or other inadvertence . We must give

section 1(3)’s text meaning as ratified. See Arizonans for Second Chances,

Rehab

. , & Pub

. Safety , 249 Ariz. at 406 ¶ 28; see also Brousseau v. Fitzgerald , 138
Ariz. 453, 455 (1984) ( noting that when the legi slature changes the language of a statute, the presumpti on is an intent to make a change in the law)

.

¶14 S ection 1(3)’s first clause enumerates the types of measures
exempt from the referendum power: (1) “ laws immediately necessary for the preservation of t he public peace, health, or safety ” ; and (2) laws for the support and maintenance of state departments and state institutions. Th e first clause’s reference to laws “for the support and maintenance ,” in

context, necessarily entails a broader meaning than t he second clause’s use of “appropri ations.” An appropriation is “the setting aside from the public revenue of a certain sum of money for a specified object, in such manner that the executive officers of the government are authorized to use that money, and no more, for that object, and no o ther.” League of Ariz. Cities &

Towns v. Martin , 219 Ariz. 556, 560 ¶ 15 (2009) (quoting Hunt v. Callaghan

, 32 Ariz. 235, 239 (1927)). Support is defined as “a broader term embracing both the acquisition and allocation of funds.” Wade v. Greenlee County

, 173 Ariz. 462, 463 (App. 1992). The se definitions align with the common meaning of these familiar terms.

¶15 We reject the notion that section 1(3)’s reference to “support and maintenance” is synonymous with “appropriatio ns .” Measures that provide “support and maintenance” include laws that raise or disburse revenue, while “appropriations” merely disburse revenue generated through laws for suppo rt and maintenance. See Wade , 173 Ariz. at 463 (“A ppropriations

. . . are onl y part of support, the act of allocating independent of how the money was acquired

. ”). Thus, a n appropriation is

a subset of measure s that provide support and maintenance for state
government. This broader interpretation of section 1(3) harmonizes its tw o clauses, which involve different types of inherently related laws: the first clause exempts laws that raise or disburse revenue for the su pport and maintenance of identified state governmental entities and the second clause

sole ly concerns appropriations that disburse funds from already

- generated

revenue.

¶16 Our jurisprudence harmonize s with our interpretation of

section 1(3). Contrary to the trial court ’s and IIA’s claim, w e have never expressly limited exempt measures unde r section1(3) to appropriations

. InARIZONA FREE ENTERPRISE CLUB, ET AL

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. Opinion of the Court

9 Warner v. White

, 39 Ariz. 203, 214 (1931), we held that “it was the undoubted purpose of the framers of the Constitution to provide that every act passed by the Legislature should be referable unless it be a safety or support measure requiring immedi ate, or earlier operation than ninety days .” Although W arner erroneously engrafted the first clause’s “ immediately necessary” requirement onto the support and maintenance provision, we did not expressly limit the referendum exemption to appropriations.

¶17 Fifteen years later, we disavowed Warner to the extent it read the words “immediately necessary” to apply to the “support and

maintenance” referendum ex emption

. Garvey

, 64 Ariz. at 352–53. It is

debatable whether Warner or Garvey offer s the best interpretation of

section 1(3)’s “immediately necessary” requirement

. But “[w] e are mindful of the importance of stare decisis ,” Sell v. Gama , 231 Ariz. 323, 3 29 ¶ 30 (2013), and “ do not lig htly overrule precedent and do so only for compelling reasons ,” Lowing v. Allstate Ins. , 176 Ariz. 101, 107 (1993) (quoting Wiley v. Indus. Comm’n , 174 Ariz. 94, 103 (1993)). Garvey has been

the prevailing interpretation and application of “immediately ne cessary”

for over seventy

- five years , and it is not clearly erroneous

. Thus, w e find no compelling reason to overrule Garvey on this point and we adhere to its reasoning. See id. (“[T]he degree of adherence demanded by a prior judicial decision depends u pon its merits, and it may be abandoned if the reasons for it have ceased to exist or if it was clearly erroneous or manifestly wrong.”).

¶18 In Garvey

, we consider ed whether a specif ic appropriation bill was exempt from a referendum challenge under section 1 (3) and held that “the test of whether the appropriation is for the support and maintenance is not the earmarking for a specific pupose [sic] , but rather [whether] the funds [are] appropriated for use in carrying out the objects and functions of the depart ment.” 64 Ariz. at 347. There, the subject bill directed $50,000 to the Arizona Corporation Commission to ascertain a fair market v alue of all property of public service corporations providing gas or electric utilities in order to create utility rates. Id. at 345. We concluded that the Secretary of State correctly refused to file the referendum petitions because the appropriation wa s for the support and maintenance of the existing functions of the Corporation Commission and thus exempt from

referendum c hallenge under section1(3). Id. at 346–47, 355.ARIZONA FREE ENTERPRISE CLUB, ET AL

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. Opinion of the Court

10 ¶19 Although Garvey established that the specific appropriation

measure at issue was exempt from referendum

, it did not limit the type of
exempt measures to appropriations. See id. at 346

– 48. Rather, bec ause the bill itself was an appropriation, we merely defined that bill as an exempt appropriation under section 1(3). See id. Thus, we did not cabin

section 1(3)’s referendum exemption to appropriations and emergency measures for the preservation of the public peace, health, or safety

.

¶20 Our holding that revenue laws “for the support and

maintenance ” of state departments and institutions are exempt from the referendum power under section 1(3) does not foreclose a challenge to every law that raises state re venue. A revenue law is exempt fr om referendum only if it supports existing state departments or state

institutions. See id. at 348 ( “Here the only effect or new features of th e measure sought to be referred is the appropriation itself, the commission

be ing already vested with the power and the duty to perform the acts

mentioned in the law. ”). We announced this principle in Warner , affirmed

it in Garvey , and reaffirm it now. Id

. (“ In the Warner case it was very properly held that the measure was not one for the support and maintenance of a state department , but for the creation of a new department, and, not being passed with the emergency, i t was referable.”).
Thus, t he people retain the right to challenge a law creating a new department of the state ev en if it also raises revenue to support the newly

minted department. W arner , 39 Ariz. at 215 (“[T]he people could not be deprived of their right to approve or reject a law creating a department of the state government and prescribing it s functions merely because it provides in addition the funds for the purpose of carrying out its terms in case it should finally come into being.”). Additionally

, unlike the Washington C onstitution which exempts laws for the “ support of the state
government ,” Wash. Const. art. 2, § 1(b), Arizona’s support and maintenance exemption is tethered to funding existing state departments

and state institutions , Ariz. Const. art. 4, pt. 1, § 1(3). Consequently , a

revenue measure in Arizona t hat merely suppor ts state objectives, such as increasing unemployment benefits, would be subject to referendum. See Wash. Const. art 2, § 1(b) ( providing that the referendum power does not apply to “such laws as may be necessary for the immediate preservation of the public peace, health or safety

, support of the state government and its existing public institutions ” (emphasis added) ).ARIZONA FREE ENTERPRISE CLUB, ET AL

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. Opinion of the Court

11 C.

¶21 We next address the differential treatment of “support and

maintenance” measures and appropriations under section 1(3)’s second

clause , which exempt s certain la ws from the ninety

- day operative delay

under it s “earlier operation” provision.

¶22 T he second clause provides that laws “ requir [ ing ] earlier operation to preserve the public peace, health, or safety” must go into effect immediately, given the urgency of prot ecting the public

, s ee Ariz. Const.

art. 4, pt. 1, § 1(3); Garvey , 64 Ariz. at 353–54 , and that exemp t appropriations , i.e., those that are intended to fund existing state government operations

, are effective immediately, Garvey

, 64 Ariz. at

354–55. U nder our interpretation of section 1(3)

, which affords meaning to every word of th e provision and implements what the text commands

, exempt non

- appropriation “support and maintenance ” revenue measures , like SB 1828, are subject to the ninety

- day referendum period before they

become effective “to allow opportunity for referendum petition s.” Ariz.

Const. art. 4, pt. 1, § 1(3).

¶23 T he parties d ispute whether a logical purpose exists for the

founders to exempt “support and maintenance” revenue laws from the referendum process in the first clause but simultaneously exclude th em from the “e arli er operation ” provision in the second clause

. We may

consi der the text’s purpose but only to decide which textually permissible meaning to adopt. See Scalia & Garner, supra , at 57 (“[E ] xcept in the rare case of an obvious scrivener’s error, purpose

— even purpose as most narrowly defined

— cannot be used to contradict text or to supplement it. Purpose sheds light only on deciding which of various textually permissible meanings should be adopted.”).

¶24 W e conclude section1(3)’s text yields a logical structure

, and

we consider its purpose only to ascertain which textually permissible interpretation to adopt

. To that end, we note i ts first and second clauses relate to different types of exempt laws

— one that generates revenue and appropriates funds for the suppor t and maintenance of the state and another that disburses existing revenu e without delay

.

¶25 We presume t he disparate procedural treatment of these laws

in the second clause serve s a purpose consistent with its textual design forARIZONA FREE ENTERPRISE CLUB, ET AL

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. Opinion of the Court

12 s everal reasons

. First, the first clause exempts revenue and appropriation

l aws from referendum to ensure that existing state departments and institutions continue to function without disruption in the new fiscal year

. See Wade

, 173 Ariz. at 464 (“The function ing of government can be as effectively damaged by the inability to acquire funds as by the inability to spend them.”). Second, t he exercise of police powers and appropriation of funds to operate the government e ntail an immedia cy for implementation that distinguishes such mea sures from general revenue provisions. Third

,

a lthough “appropriations” are readily identifiable and more often will qualify for exemption as in Garvey

, whether revenue laws qualify as measures for “support and maintenance” of existing departments and

ins titutions may present a more nuanced inquiry. The ninety

- day period

allows citizens an opportunity to evaluate and challenge whether the

measure is truly for the “support and maintenance ” of the existing state departments and state institutions , as some r ev enue measures may not fall

into this category

. S upra ¶ 20. Wade and this case illustrate th at point. Finally , this period also gives the public time to learn of additional obligations of the new laws

— here

, assessing potential tax liability or relief

f rom taxation

. See John D. Leshy, The Arizona State Constitution 126 (2013)

.

¶26 T hese purposes are consistent with our textually permissible interpretation of section1(3) and refute any notion that its text must trace
to a drafter’s error or that we have se ttled on an absurd construction

. Indeed, a contrary reading that provides exemption from referral only for appropriation measures voids all independent meaning from the framers’

deliberate decision to substantively vary the provisions of the two clauses.

D.

¶27 O ur holding that revenue measures for the support and maintenance of existing state departments and institutions are exempt from

the referendum process under section 1(3) is hardly a novel interpretation

of our constitution. In Wade

, the court of app eals considered a new one

- half

cent sales tax to fund existing county programs and affirmed the trial court’s ruling that the measure was exempt from the referendum process

. 173 Ariz

. at 463. Wade established a persuasive analytical template for the

refe rendum exception’s arguable internal inconsistencies, noting that “[s]upport is a broader t erm embracing both the acquisition and allocation of funds. Support cannot occur without money. Appropriations, however, are only part of support, the act of allocating independent of how the moneyARIZONA FREE ENTERPRISE CLUB, ET AL

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. Opinion of the Court

13 was acquired.” Id. Adopting “the broader interpretation of what is
excluded from referendum,” the court examined the records of the

convention and concluded that the removal of “appropriations” in

section 1(3) ’s first c lause suggested a purposeful effort to broaden the

con cept of “ support ” to cover more than simply appropriations. Wade , 173

Ariz. at 464. Th rough this lens, th e court concluded the challenged sales tax qualified under the referendum exception as a suppor t measure because the

sales tax was used “ as part of total revenues necessary to meet the annual county budget. ” 2 Id.

¶28 We also note that the most recent Attorney General opinion interpreting section 1(3) accord s with our holding. 3 See Op. Ariz. Att’y Gen

. I97-007, 1997 WL 566650, at *2 & n.3 (1997) (concluding that neither tax nor appropriation measures are referable under the Arizona Constitution ).

The re, the Attorney General analyzed section 1(3) as we do here: the constitution exempts from referendum laws immediately necessary to

pres erve peace, health, or safety; laws “for the support and maintenance”;

and laws that “provide appropriations for the support and maintenance of

the [d] epartments of the [s] tate and of [s] tate institutions.” Id. at *2 (quo ting Ariz. Const. art. 4, pt. 1, § 1(3)). Because the bill at issue was not a peace, health, or safety measure passed with an emergency cla use or a tax

measure, the bill was not excluded from referendum on those bases and could be exempt from r eferendum o nly if it was an appropriation that provided for the support and maintenance of departments of the state or

state institutions

. Id. Thus, the Attorney General recognize d the textual

difference between the clauses in section 1(3) and differenti ated betwee n measures that provide support and specific appropriation measures. In issuing the opinion, the Attorney General disavowed an earlier opinion

2 W e note Wade ’s questionable application of section 1(3) to a county tax because this constitutional provision applies only to revenue measures that are “for the support and maintenance of the departments of the state government and state institutions.” Ariz. Const. art. 4, pt. 1, § 1(3) (emphasis added). Although w e do not decide the issue today , we clarify

that o ur embrace of Wade ’s interpretation of section 1(3) does not extend to its applicability to a count y tax

. 3 We recognize that, although o pinions of the Attorney General are advisory, “the reasoned opinion of a state attorney general should be accorded respectful consideration.” Ruiz v. Hull , 191 Ariz. 441, 449 ¶ 28 (1998).ARIZONA FREE ENTERPRISE CLUB, ET AL

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. Opinion of the Court

14 conclud ing that the public’s right of referendum extended to non

appropriation tax measures. Id. at *2 n.3; s ee Op. Ariz. Att’y Gen. I90 -068, 1990 WL 484076, at *5 (1990).

E.

¶29 We next consider whether a tax measure must increase revenue to qualify for exempt ion from the referendum process under

section 1(3). The trial court, citing Wade , ruled that even if the su pport and maintenance exemption applies to revenue measures, it is limited to laws

that increase revenue

. Here, because the trial court concluded that SB 1828

would at least initially decrease tax revenue, it ruled , and IIA contends, that

SB 1828 is subje ct to referendum

. We disagree.

¶30 The constitution provides that “laws

. . . for the support and maintenance of the departments of the state government and state

institutions ” are exempt from referendum. Ariz. Const. art. 4, pt. 1, § 1(3).

The text is dev oid of any reference to a requirement that “support and maintenance” measures increase revenue. All measures that generate

revenue, whether they incr ease or decrease revenue from one fiscal year to

the next

, provide support and maintenance

. Wade does not diverge from this logic. The re, the court of appeals defined the term “support” as

“ embracing both the acquisition and allocation of funds, ” which cannot

occur without raising revenue

. Wade

, 173 Ariz. at 463. The fact that the tax

measure at issue in W ade increased revenue does not support the proposition that a revenue measure must do so to be exempt

. Therefore, even if the amount of “support” decreases from the prior fiscal year because

of a revenue

- decreasing measure, it will qualify for exemption u nder

section 1(3) if it generates funds and they are appropriately allocated for the support and maintenance of existing state departments and institutions.

¶31 The absence of any textual support in the constitution for the proposition that only tax measures that immediately increase revenue are exempt from the referendum process perhaps reflects the founders ’

wisdom. Conditioning the referendum exemption on the revenue effect of a support and maintenance measure is a fool’s errand that raises myriad question s concerning the temporal scope of the inquiry and rests on the vagaries of economic projections

. Cf. Armstrong v. U nited S tates

, 759 F.2d 1378, 1381 ( 9th Cir. 1985) ( holding that, under the origination clause of the
Constitution, “ [t]he term ‘ Bills for r aising Revenue ’ does not refer only toARIZONA FREE ENTERPRISE CLUB, ET AL

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15 laws increasing taxes, but instead refers in general to all laws re lating to taxes”). The net revenue impact of a bill in the short term may invariably

differ from its long

- term effect . Thus, all revenue measures th at support
and maintain existing state departments and institutions, including those
that decrease net revenue, are exempt from referendum

. 4

II.

¶32 The dissent effectively contends that the majority interprets

section 1(3) to provide “categorical exemptions from the referendum” and fails to “give operative effect to every provision within section 1(3)

consistent with the framers’ intent.” Infra ¶ 60 . We disagree. Our interpretation does not categorically exempt tax revenue measures , but

rather limits the exemption to such measures for the support and maintenance of existing state government departments and institutions

,

su pra ¶ 20 , and gives meaning and purpose to every provision of

section 1(3).

¶33 We embrace the dissent’s recounting of the history of the

r eferendum power

, which is not in dispute. I nfra ¶¶ 43–46. But the

dissent’s citations to the constitutional convention record fail to delineate the precise scope of section 1(3)’s referendum exemption. Instead, the dissent relies heavily on the First Legislature’s treatment of section 1(3) in its passage of legislation. Infra ¶¶ 47–49

. Although the examples may “give credence to an interpretation ” of section1(3) that every exemption requires

an emergency measure , infra ¶ 49, conduct of a subsequent legislature does

not fill the void in the constitution al convention record, and we are

re luctant to rely on legislative understanding of a constitutional provision as a primary source of authority for our own interpretation

, cf. Napolitano

, 213 Ariz. at 485 ¶ 8 (“Although each branch of government must apply and uphold the constitution, our court s bear ultimate responsibility for interpreting its provisions.”). Similarly, we acknowledge that our earlier cases interpreted section 1(3) differently, infra ¶ 50–54, but our holding today aligns with this Court’s most recent consideration of the issue

, supra ¶ ¶ 17–20. Because we conclude that Garvey ’s reasoning is not clearly

4 We do not decide today whet her a law that entirely eliminates an existing tax qualifies as a measure for the support and maintenance of the state departments and institutions.ARIZONA FREE ENTERPRISE CLUB, ET AL

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16 erroneous , supra ¶ 17, we do not share the dissent’s view that stare decis is principles warrant its reversal

, i nfra ¶¶ 60–73.

¶34 We next address the dissent’s textual interpretation of

section 1(3), which undergirds it s assertion that our interpretation fails to “give operative effect to every provision within section 1(3) consistent with

the framers’ intent ,” i nfra ¶ 60, namely the section ’s “emergency measure ” ( which the dissent styles the “ last clause”), infra ¶ 84–85. The dissent
suggest s that we fail to give the last clause its due because our interpretation does not recognize an emergency measure as a prerequisite for exemption of any law under section 1(3). We are unpersuaded

.

¶35 Section 1(3)’s last clause prescribes the procedural requirements for implementing “emergency measures” contemplated in the first and second clauses and reads, in part,

provided, that no such emergency measur e shall be considered passed by the legislature unless it shall state in a separate

secti on why it is necessary that it shall become immediately operative

, and shall be approved by the affirmative votes of

two

- thirds of the members elected to each house of the legislature.

Ariz. Const. art. 4, pt. 1, § 1(3) (emphasis added). To give the term “such” meaning, there must be a reference before this clause. The prior (and only) “emergency measure” referenced is one that “require [s] earlier operation to

preser ve the public peace, health, or safety” in the second clause. The last clause thus clarifies which laws “require” earlier operation

— those passed by a two

- thirds vote with an immediate effective date

— and are thus non

referable b ecause they are laws, as des cribed in the first clause, “immediately necessary for the preservation of the public peace, health, or safety.” See Garvey , 64 Ariz. at 354 (concluding that the emergency provision of section 1(3) “refers strictly to emergency measures, to

- wit, those per taining to public peace, health [,] or safety, and [ do es] not include appropriation measures”).

¶36 The dissent concludes tha t referendum exemptions are limited to “laws immediately necessary for the preservation of the public peace, health, or safety,” and la ws that “prov id e appropriations,” infra ¶¶ 75, 79, and that an “ emergency measure ” is a prerequisite forARIZONA FREE ENTERPRISE CLUB, ET AL

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17 exemption of any law , including appropriations for the support and

maintenance of state departments and institutions

, i nfra ¶¶ 84–86. Aside

from the fact that this interpretation disregards the framers’ striking of “appropriation” in the first clause, supra ¶ 13, the dissent’s premise is incongruous with its earlier conclusion that the first clause’s “immediately necessary” and the second clause’s “ea rlier operation” provisions do not apply to support and maintenance measures

, i nfra ¶¶ 76

, 79–80. I f the “immediately necessary” and “earlier operation” qualifiers do not apply to support and maintenance measures in the first and second clauses

, the last

clause’s reference to “such emergency measure [s] ” most reasonably refers only to “public peace, health, or safety” laws and necessarily excludes support and maintenance measures. Our interpretation, as with Garvey ’s, does not fail to give operative effect to the last clause ; rather, consistent with

section 1(3)’s text, our analysis limits the last clause’s emergency measure requirement to laws to preserve the public peace, health

, or safety

. 64 Ariz.

at 354. Thus, contrary to the dissent’s c laim

, our interpretation merely implements section 1(3)’s exemption and does not infringe the referend um power under section 1(1). Infra ¶¶ 66–69.

II I.

¶37 IIA request s attorney fees and costs under the private attorney general doctrine a nd A.R.S. §§ 12- 341 and

- 342. The private attorney general doctrine is an equitable rule that allows a court to award fees to “a party who has vindicated a right that (1) benefits a lar ge number of people, (2) requires private enforcement, and (3) is of societal importance.” Ansley v. Banner Health Network , 248 Ariz. 143, 153 ¶ 39 (2020). IIA has not vindicated any righ t and therefore is not entitled to fees. W e also deny IIA’s request for costs under § § 12- 341 and

- 342 because it is not

the prevailing party.

CONCLUSION

¶38 Our interpretation of section 1(3) implements the founders’ original plain meaning , as expressed in the text, concerning the meaning

and scope of the referendum power to challenge tax laws. We interpret constitutional and statutory provisions as they are written

, and we are

constrained from rewrit ing the law under the guise of interpreting it even

if w e divine a more desirable intended out come than the text allows. Cf.

Silver v. Pueblo Del Sol Water Co.

, 244 Ariz. 553, 566 ¶ 44 (2018) (“We declineARIZONA FREE ENTERPRISE CLUB, ET AL

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18 to recast the statute’s meaning under the guise of interpreting it.”)

. Thus,

even Arizona’s strong public policy favoring the constitutional right to

referendum does not supplant our duty to interpret and apply the

constitu tion as it is written. Cf. Ariz. Sch. Bds. Ass’n , 252 Ariz. at 229 ¶ 45 (“[ Our] constitutional duty to interpret and apply the constituti on requires us to invalidate a law if it infringes the constitution.” ).

¶39 Our holding that revenue laws like SB 1828 are exempt f rom the referendum process as measures for the support and maintenance of existing departments of the state government and state institutions does not deprive our citizens of constitutional recourse to change our tax laws. Our constitution affords myriad avenues to affect political and policy change

, including on the subject of taxes

. Citizens may change such laws indirectly

thro ugh the ballot box by select ing their elected representatives to implement their policy preferences or directly through the initiative process. Ariz. Const. art. 4, pt. 1, § 1(2). This Court has no voice on the

choices our citizens make on the wisdom of tax polic y, but we have a duty

to ensure that the mechanism s through which they exercise such choices comport with our constitution.

¶40 For the reasons set forth above, we reverse the trial court’s ruling and remand for entry of judgment consistent with this opinion.ARIZONA FREE ENTERPRISE CLUB, ET AL

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19 MONTGOMERY, J.

, joined by JUSTICE BEENE, concurr ed in part and

dissent ed in part:

¶41 We concur in the majority’s determination that tax revenue measures are for “the support and maintenance of the departments of the state government and state institutions.” Supra ¶ 1 . However, we respectfully dissent from our colleagues’ analysis and conclusion that permits an exemption for tax revenue measures absent compliance with all the requirements of article 4, part 1, section 1(3) of the Arizona Constit ution

. Supra ¶¶ 25–28 . Instead, we would return to the understanding of the referendum power ’s scope as reflected in the records of the constitutional convention of 1910, the actions of the first legislature, and the earliest

decisions of this Court in C lark v. Boyce

, 20 Ariz. 544 (1919)

, Orme v. Salt River Valley Water Users ’ Ass’n , 25 Ariz. 324 (1923)

, and Warner v. White , 39 Ariz. 203 (1931). Accordingly, n o legislative act is exempt from the referendum save specific categories of laws for specific reasons enacted in a specified manner.

¶42 At the outset, we acknowledg e the difficulty in inter preting this provision of our c onstitution. We thus echo the state’s earliest justices

in confessing that the wording of article 4, part 1

, section 1 “has cost us n o little trouble to arrive at a conclusion.” Clark , 20 Ariz. at 546. Nonetheless,

as note d there exists guidance among those who drafted, exercised, and interpreted the exemption from the referendum power from which we can faithfully discern an interpret ation that obviates angst over the effect of the phrases “immediately necessary” and “earli er operation,” avoids arbitrary distinctions between new and existing departments of state government, and renders distinctions between tax measures that ultimately raise or

lower revenue irrelevant.

I. HISTORICAL BACKGROUND

A. Constitutional Convention and the Referendum

¶43 The ability for the people to engage in direct democracy through initiative and referendum was at the center of the process for determining delegat es to the constitutional convention. John D. Leshy, The Making of the Arizona Constitution

, 20 Ariz. St. L.J. 1, 32 –33 (1988); see also
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20 Ariz. St. L.J. 1, 10 (1978) . Ultimately, thi rty

- nine of the fifty

- two delegates

chosen “ had pledged to support the initiative and referendum. ” Leshy

, supra , at 32. And delegates reminded the convention of their pledge. Delegate Wilfred Webb stated that “candidates to this convention from

Cochise county were pledged

. . . to favor the Oregon plan of initiative and

referendum .” The Records of the Arizona Constitutional Convention of 1910

, at

183 (John S. Goff ed., 1991) (“Goff”)

. 5 Delegate Charles Roberts declared, “I came here standing on this pr ogressive platform which assured the people of every county, city and town the right to use the initiative and

referendum

. ” Id. at 184. And Delegate Andrew Parsons read directly from the Cochise county platform, which declared:

Believing in the ability and discretion of the people and that they are capab le of self

- government, and the closer the law

making power is to the people, the better the results and safer the government, we pledge our candidates for the

constitutional convention to use their utmos t endeavor to place in the constitution self

- executin g provisions for the

initiative and referendum on all laws

. . . substantially according to what is know [sic] as the ” Oregon plan. ”

Id.

¶44 The subject of the people’s power to legislate through

initiativ e and referendum consumed the convention more than an y other subject. See id. at 1013

– 15 (indexing the various subjects addressed by delegates in the records of the convention); see also Leshy

, supra , at 46;

Bakken

, supra , at 10. Discussion focused on issues concerning the extent of

5 Oregon voters amended their constitution in 1902 to include
Measure 1, which provided that: “the people reserve to themselves power to propose laws and amendments to the Constitution and to enact or reject the same at the polls, independent of the Legislative Assembly, and also reserve power at their own option to approve or reject at the polls any act

of th e Legislative Assembly.” Charles A. Beard and Birl E. Shultz,

Documents on the State

- Wide Initiative, Referendum, and Recall 79–80 (1912). The only limitation to the exercise of the power was for “except as to laws necessary f or the immediate preservation of the public peace, health, or safety.” Id. at 80.ARIZONA FREE ENTERPRISE CLUB, ET AL

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21 the power of initiative and referendum for cities, tow ns, counties

, and “other municipalit [ ies ] ,” Goff

, supra , at 176 –88; the percentage of voter signatures required to place a measure on the ballot to ensure the power could be fairly exercised, id. at 188– 89, 195

– 97 ; whether providing for the

initiativ e and referendum violated the Enabling Act’s requirement that the constitution provide for a republican form of government, id. at 198–208; and whether including it in the constitution would impede achieving

state hood by evoking a rejection by Congress o r the President, Leshy

, supra , at 104–06.

¶45 Regardless of the sometimes heatedly stated concerns, the convention adopted a constitution providing :

[T] he people reserve the power to propose laws and amendments to the constitution and to enact or reject s uch laws and amendments at the polls, independently of the legislature; and they also reserve, for use at their own option, the power to approve or reject at the polls any act, or item,
section, or par t of any act, of the legislature.

Ariz. Const. art. 4, pt. 1, § 1(1).

¶46 Voters ratified the constitution overwhelmingly on February 9, 1911. Canvass of the Returns , Ariz

. Republican, Feb. 28, 1911, at 1 ( stating that 12,187 votes were cast in favor of ratification compared to the
3,822 cast against ). However , due to a provision permitting the recall of judicial officers, President Taft refused to approve the constitution as

drafted. William H. Taft, Special Message of the President of the United States: Returning Without Approval House Joint Resolutio n No. 14, H.R.

Doc. No. 62-106 , at 1 (1911). Voters then ratified an amendment to the constitution eliminating the recall on December 12, 1911. 6 Phillips Is Saved from Political Disaster : Recall Amendment

, Ariz

. Republican, Dec . 13 , 1911,

at 1.

6 Arizonans then amended the constitution at the very first general
election on November 5, 1912

, and reinstated the recall of public officials, including judges. 1913 Ariz. Sec’y of State, Ann. Rep . 23.ARIZONA FREE ENTERPRISE CLUB, ET AL

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22 B. The Fir st Legislature

¶47 In its first sessions, the Arizona legislature enacted numerous tax measures. To ensure exemption from referral, the legislature repeatedly complied with the provisions of section 1(3) and enacted these laws as emergency measures. For exa mple, in imposing a tax on telegraph and telephone companies’ property, the legislature made clear that the tax measure was a law “necessary for the support and maintenance of State institutions and Departments of State.” 1912 Ariz. Sess. Laws ch. 22, § 3 (1st Sp ec. Sess.). The act also deemed it “necessary that said amendment should go into effect immedi ately,” declared an emergency existed, and provided

that the “ Act shall be in full force and effect from and after its passage and approval by the Governor, and is hereby exempt from the operation of the Referendum provision of the State Constitution.” Id

.

¶48 Another example from the same session concerns an act imposing taxes on real and personal property. 1912 Ariz. Sess. Laws ch. 64 (1st Spec. Sess.). In secti on eight of the act, the legislature stated that the tax measure was “necessary for the support and maintenance” of state departments and institutions and declared an emergency, giving the act immediate effect and exempting it from the referendum. Id. § 8; s ee also

1912 Ariz. Sess. Laws ch. 11, § 2 (Reg. Sess.) (repealing a mining tax in favor

of a new property tax regime, which the legislature determined necessary to “provide funds for appropriations for the support and maintenance of the departments of State and all State institutions, and to preserve the public peace and safety,” and declaring an emergency so the law had immediate effect); 1912 Ariz. Sess. Laws ch. 39, § 8 (Reg. Sess.) (invoking the “public peace, health, [ or ] safety” as well as the “sup port and maintenance” requirements to levy a new tax on private car companies, which the legisl ature deemed necessary “for a more equal and uniform system of assessment and apportionment of taxes, and for the efficient

collection of State taxes and revenue ”); 1912 Ariz. Sess. Laws ch. 23, § 3 (1st Spec. Sess.) (declaring an emergency in order that a law imposing taxes on railroad corporations “to preserve the public peace, health and safety , and for the support and maintenance of the Departments of St ate an d State

institutions ” would have immediate effect); 1913 Ariz. Sess. Laws ch. 73, § 8 (3d Spec. Sess.) (declaring law imposing an annual tax on real and personal property to be “necessary for the support and maintenance of the Departments of State and State Institutions”).ARIZONA FREE ENTERPRISE CLUB, ET AL

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23 ¶49 These historical examples give credence to an int erpretation

that section 1(3) of the Arizona C onstitution only exempts specific legislative acts passed as emergency measures. It is readily evident that the first legislature clearly und erstood that adhering to the requirements of

section 1(3) for passin g emergency measures was necessary to exempt tax

revenue acts from the referendum. The state’s representatives, many of
whom served at the constitutional convention, and two of whom serve d on the committee proposing the language of section 1(3), treated t ax laws as

otherwise referable. See Clark , 20 Ariz. at 554– 55 ( giving “great weight” to “a construction of the fundamental law by members of the Legislature who

were also members of the constitutional convention”). Thus, the first legislature’s treatment of tax measures undermines a conclusion that support and maintenance laws are ipso facto immune from the referendum.

C. Early Supreme Court Decisions

¶50 The first case to consider section 1 (3) address ed the nature of the governor’s appr oval to exempt an emergency act from the referendum.

Clark

, 20 Ariz. at 545

– 46. The Court included a justice , Albert Baker, who introduced the very provision in question at the c onstitutional co nvention.

Se e Goff

, supra , at 44, 1387 (recording that Delegate Albert Cornelius Baker introduced a proposition addressing the “Initiative and Referendum and

the Recall” and later served on the Arizona Supreme Court from 1893 –1897 and again from 1919–1921 ). T he Court characterized the cas e before it as a “controversy

. . . as to what construction shall be placed upon sub[section] 3 , § 1, of article 4.” Clark , 20 Ariz. at 546. Importantly, the

Court recognized that section 1(3)’s referral exemption applies only to specific types of legislative acts passed as emergency measures :

This sub [section] of the Constitution recognizing the people as the repository of all power has provided that all legislative acts passed by the Legislature shall be subject to the

referendum except emergency measu res . To give the people an opportunity to invoke the referendum, if they so choose, laws

not em ergent do not go into effect at once, but become operative 90 days after the final adjournment of the Legislature. Emergency laws when passed according to theARIZONA FREE ENTERPRISE CLUB, ET AL

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24 fo rms prescribed by the Constitution, become effective at once and prevent a referendum

.

Id. at 547 (emphasis added)

. And t he Court underscored the importance of the actions of the first legislature in interpreting section 1(3) stating:

I f we had greater doubt of the correctness of the construction that we have placed upon the constitutional provis ions as affecting the enactment of em ergency laws, we would still feel constrained, on account of the public and private interests involved, to heed the unbroken course of conduct by the other two departments. Many of the members of the constitutional

conv ention were members of the first and other sessions of the Legislature. The president of the constitutional convention was the Governor of the state during the sessions

of 1912 and 1915.

Id. at 554. The Court further noted it had “indorsed the rule that a construction of the fundamental law by members of the Legislature who were also members of the constitutional convention was entitled to great weight. ” Id. at 554–55. 7

¶51 This Court next considered section 1(3) in Orme . The Court addressed the validity of a legislative act passed as an em ergency measure in resolving the issues presented in the case. 25 Ariz. at 344

– 45. The language in question read:

Whereas, the provisions of this act are necessary for the preservation of the public peace, health a nd safety, an emergency is hereby de clared to exist, and this act is hereby exempted from the operation of the referendum provisions of
the state Constitution, and shall take effect and be in full force and effect from and after its passage and its approva l by the

Governor.

7 Justice Baker separately concurred in the opinion. See id. at 557 –562. This surely would have been the place to correct any error in understa nding the exemption of measures from the referendum.ARIZONA FREE ENTERPRISE CLUB, ET AL

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25 Id. at 346

. The Court acknowledged the reservation of the referendum power by the people but nonetheless observed:

[t] his reserved power, however, does not apply to acts requiring “ earlier operation to preserve the public peace,

health or safety, ” nor to those provi ding “ appropriations for the support and maintenance of the departments of state and

of state institutions. ” Enactments of this character may be made immediately effective and thus exempted from the referendum by the Legislature ’ s stating in a separate sec tion of the act why it is necessary and declaring the existence of an emergency

.

Id. at 346

– 47 (emphasis added). The Court ultimately found the language of the act in question sufficient to exempt it from the referendum. Id. at

347–48.

¶52 In Warner , this Court affirmed Clark ’s and Orme ’s conclusion that exceptions to the referendum power are limited to specific categories of legislative acts that are explicitly identified as such and passed in a specific manner . 39 Ariz. at 213. Warner also addressed a provision within a larger act that appropriated monies “[t]o carry out the purposes of th [e]

act.” Id. at 207. Opponents to referral of select provisions of the act, including the appropriations provision, argued that because the sections sought to be referred included an appropriation to aid a statewide taxing effort, it was for the support and maintenan ce of a department of state government and therefore could not be subject to the referendum in light

of section 1(3). Id. at 208. Proponents for referral argued that the appropriation was not for an existing department of state government b ut
was for a n ewly created department, therefore the emergency provisions did not apply. Id. The proponents also argued, but did not press, that an appropriation for an existing department would still be subject to the referendum unless it was exempted a s provided in section 1(3). Id.

¶53 The Warner Court noted that “[t]he third clause of this sub[ section ,] which sets forth the condition under which emergency measures shall be considered passed by the Legislature[,] shows clearly that

no act is withdrawn fr om the referen dum ipso facto under the Constitution

of this state.” Id. at 213. The Warner Court further stated :ARIZONA FREE ENTERPRISE CLUB, ET AL

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26 While it is true these two classes of laws are excepted from the
referendum, it will be observed that they are not given this status merely because of their nature or the need for their earlier operation than ninety days but because, these things being true, the Legislature, which is the judge of the question whether they should become immediately operative, recognizes this necessity, expresse s it in a sepa rate section of the act and follows this with approval by a two

- thirds vote of each house; in other words, incorporates in the act the emergency clause. In no other way may a law enacted by the Legislature of this state, regardless of its nature or the urgency for its early operation, be withdrawn from the referendum

.

Id. (internal citation omitted) (emphasis added)

.

¶54 Reasoning that the phrases “immediately necessary” and “require earlier operation” applied to each class of laws as referenced in the

first and second clauses, the Court further stated that “ it was the undoubted purpose of the framers of the Constitution to provide that every act passed by the Legislature should be referable unless it be a safety or support measure requiring imme diate, or earl ier operation than ninety days ,” rendering them emergency measures and eligible for exemption from the

referendum. Id. at 214.

¶55 Fifteen years later, this Court took up another appropriations measure requiring the interpretation of section 1( 3) in Garvey v. Trew

, 64 Ariz. 342 (1946) . The legislature passed the measure in question with a

two

- thirds vote and the governor approv ed it ; however, it did not have an emergency clause. Id. at 345. The secretary of state refused to accept petitions t o refer the measure to the ballot, as advised by the attorney general, on the basis that the act was for the support and maintenance of a depar tment of state government and not subject to referendum. Id. at

345–46.

¶56 The Garvey Court expressly found that the appropriation was for the support and maintenance of a department of state government and therefore covered by section 1(3) and further we nt on to consider whether the emergency provisions applied. Id. at 34 7–48 . In its analysis, the Court distingui shed Warner by finding the measure it addressed “ whollyARIZONA FREE ENTERPRISE CLUB, ET AL

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27 dissimilar to that existing in the present case .” Id. at 348. Because Warner concluded that the measure before it was not for the support and maintenance of government, Garvey reasoned that the Warn er Court had no need to address the emergency provisions of section 1(3). Id. at 349. Garvey

therefore considered the Warner analysi s of section 1(3) to be mere “obiter dicta” and, pursuant to considerations of stare decisis, dismissed it given

the “ grav e doubt as to the correctness of the construction given to section 1(3).” Id. at 349–51.

¶57 Free to interpret section1(3) anew, Garv ey opined:

It is not logical to assume that the creators of these departments and institutions set up for the purpose of conducting government, intended that their functions might be disrupted for long periods by a small minority. We cannot

believe that the framers of the constitution, or the voters who adopted it, intended to make it possible for a small percentage of the voters to stop the functions of the various departments of government by cutting off t heir appropriations through the operation o f the referendum. This does not make sense.

Id. at 352.

¶58 This assessment followed the point that a distinction should continue to be made between appropriations measures for new departments versus existing departme nts:

We are satisfied that the framers of the constitution and the people who voted for its adoption understood and intended that appropriations for the support and maintenance of the departments of the state government and state institutions

were not to be subject to the referendum. The departmen ts of the state and its various institutions come into existence only through the majority vote of the people, or of the legislature. Where a new department of state is set up, or a new institution provided by the legislature, its creation is subject

to th e will of the people under the referendum unless the law is passed by a two

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28 Id. at 351. Garvey categorically rejected any notion that an appropriations

measure for an exi sting state department not passed with emergency provisions could be subjected to the referendum because “[t]he will of the majority would be defeated until such time as a vote cou ld be taken at a general election.” Id. at 352.

¶59 Garvey then considered se ction 1(3) as a whole and observed

that section 1(3) has “two separate and distinct classes of acts” that are

immune from referral: (1) “measures immediately necessary for the

pres ervation of the public peace, health or safety,” and (2) “measures for the support and maintenance of governmental departments and

institutions.” Id. at 353. Contrary to Warner , the Court determined that the “emergency measure” as used in § 1(3) ’s second clause refer s “only to the police power acts of a character immediately nec essary to preserve the peace, etc.,” and that the phrase “immediately necessary” qualifie s only public health laws rather than support and maintenance laws. Id. Likewise,

the Cou rt concluded that the phrase “earlier operation” qualifi es only acts
involvi ng the public peace, health, and safety. Id. at 353

– 54. It therefore concluded that support and maintenance laws, or at least appropriations, are categorically exempt from referr al. 8 Id. at 354.

8 Nonetheless, t he Garvey Court repeatedly stated that the support and maintenance laws exempt from referral are appropriation measures. See id. at 353 (“[M]easures for the support and maintenance of governmental departments and institutions

. . . relate [] wholly to appropriations for support og [sic] g overnment function.” ( e mphasis added) ); id. at 351 (“We are satisfied that the framers of the constitution and the people who voted for its adoption understood and intended that appropriations for the support

and maintenance of the d epartments of the state government and state institutions were not to be subject to the referendum.”); id. at 352 (“If an appropriation is for the support and maintenance of a department or institution, it is exempt.”); id. at 354 (“It is, therefore, our v iew that measures to provide appropriations for support and maintenance are exempt from the referendum.”); id. (“[O]nly appropriations for the support and maintenance of state departments and institutions, and those only in existence are exempt . . . .”).ARIZONA FREE ENTERPRISE CLUB, ET AL

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29 II. OVERRULING GARVEY

¶60 Garvey ’s holding that the term “ em ergency measures ” qualif ies only public health laws is not the best interpretation of the text and is undermined by the history of the constitutional convention, the practice of the first legislature, and the earliest understanding of section 1(3). We

the refore reject Garvey ’s interpreta tion of section 1(3) and its adoption of a categorical exemption of laws from the referendum. Instead, we would interpret section 1(3) consistent with Clark

, Orme , and Warner to preclude categorical exemptions from the ref erendum and give operative effect to every provision within section 1(3) consistent with the framers’ intent.

¶61 Before engaging in an analysis of section 1(3) and applying it as we propose, it is necessary to expressly overturn Garvey . Consistent with

the majority’s recognition of the val ue of stare decisis, supra ¶ 17, we acknowledge that the doctrine cautions against overruling previous decisions to promote “consistency, continuity, and predictability” in the

law. State ex rel. Brnovich v. Ariz

. Bd. of R egents , 250 Ariz. 127, 132 ¶ 17 ( 2020);

s ee also Galloway v. Vanderpool , 205 Ariz. 252, 256 ¶ 16 (2003) (“[S]tare

decisis

. . . seeks to promote reliability so that parties can plan activities knowing what the law is.”). However, stare decisis is “ a doctr ine of persuasion and not an iron chain of necessary conclusion,” White v.

Bateman , 89 Ariz. 110, 113 (1961) (quoting O’Neil v. Martin , 66 Ariz. 78, 84 (1947)), and “[t]he ease with which courts have abandoned precedent corresponds to the subject ma tter of the case at issue,” State v. Hickman

, 205 Ariz. 192, 201 ¶ 38 (2003).

¶62 Just as Garvey noted, “[w]here previous decisions involve only questions of public interest and which do not affect private rights (the case here) the doctrine of stare decisis is grea tly relaxed

. This court has not hesitated to review its prior opinions upon questions of public interest and to overrule the former holdings.” 64 Ariz. at 350 (internal citations omitted). Nevertheless, “any departure from the doctrine of stare d ecisis demands special justification.” Hickman , 205 Ariz. at 200 ¶ 37 (quoting Arizona v. Rumsey , 467 U.S. 203, 212 (1984)). And, while this is a partial dissent, the ultimate impact on the constitutional reservation of the power of the referendum requir es more than just an outline of an interpretive disagreement with Garvey or the majority.ARIZONA FREE ENTERPRISE CLUB, ET AL

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30 ¶63 “Ultimately, the degree of adherence demanded by a prior judicial decision depends upon its merits, and it may be abandoned if the

reasons for it have ceased to exist or if it was clearly erroneous or manifestly wrong.” Lowing v. Allstate Ins

. , 176 Ariz. 101, 107 (1993). Compelling reasons to overrule precedent include: (1) the language does not compel the previous interpretation; (2) the previous interpretation did not ad vance the intended policies; (3) the prior decision did not result from “clear analy sis or persuasive reasoning”; (4) overruling returns to a better supported and reasoned decision; and (5) the facts of the case at hand demonstrate that the previous interp retation was “imprudent and unjust.” Id. (quoting Wiley v.

Indus. Comm’n

, 174 Ariz. 94, 103 (1993)). E ach factor is present with Garvey

.

¶64 First, Garvey ’s categorical exemption of appropriations

measures from the referendum , even if limited to those for c urrently existing state departments and institutions

, Garvey , 64 Ariz. at 354, is not compelled by the text of section 1(3). See infra ¶¶ 71–82

. Garvey read section 1(3) to limit the application of the phrases “immediately necessary” and “earlier operation” to laws regarding public peace, health, or safety.

64 Ariz. at 353

– 54. Therefore, Garvey reasoned that appropriations for
support and maintenance of existing state departments and institutions

could not be considered emergency measures because such

“ appropriations are foreseen” and do not require immediate action

. Id. at

354.

¶65 But even if you read the text in this way, which we agre e you should, see infra ¶¶ 76–79 , it does not mean that support and maintenance measures are categorically exempt. Instead, it simply means that there are two distinct categories of laws that can be exempted from the referendum and that there are two different bases on which they c an be exempted: if they require earlier operation to preserve the public peace, health, or safety,

or if they are appropriations for the support and maintenance of state departments.

¶66 Equally problematic with the reasoning about emergency

measures is that it allowed Garvey to make a distinction between existing and new state departments. See Garvey , 64 Ariz. at 346

– 48. If appropriations are for an existing department, they cannot be e mergent and are therefore exempt. Id. at 354. However, if it is a new department, then it could be subject to the referendum. Id. at 355. This makes no sense. AnARIZONA FREE ENTERPRISE CLUB, ET AL

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31 appropriation for a new department would certainly be for the support and

maintenance of a state department, even if it was created in the same act.

Whether the legislature determined it should pass as an emergency measure could fall under either justification of being required before the ninety

- day period expires because it is needed to, say, preserve public health, or on the basis that it is an appropriation fo r an emergency as stated in a separate section.

¶67 Second, such an interpretation does not advance a clear intent of the framers to enshrine in the constitution the reserved power of the referendum for the people “ to approve or reject at the polls any act, o r item,
section, or part of any act, of the legislature .” Ariz. Const. art. 4, pt . 1, § 1(1). Garvey undermines Arizona’s strong and unequivocal public policy of construing the refer endum power in favor of the people

, W. Devcor, Inc. v. City of Scottsdal e , 168 Ariz. 426, 428 (1991), and utterly fails to give meaning to the entirety of section 1(3). A categorical exemption from the referendum is a categorical limitation on a power reserved by the people in section 1(1) that has no support in the historica l record. See supra ¶¶ 41–46.

¶68 Third, the Garvey decision did not result from clear analysis or persuasive reasoning. The Garvey Court failed to fully consider the entirety of section 1(3) in the context of section 1(1). Instead, the Court established its own logic, beliefs, a nd self

- satisfying understanding of how

section 1(3) should work, supra ¶¶ 55–59 , and wholly failed to address the historical record reflecting the framers’ intent before analyzing the language in question

, s ee Whitman v. Moore , 59 Ariz. 211, 218 (1942) (“Wh ether the attitude of the convention and the voters was wise is not for this court to say . . . .” ), overruled on other grounds by Renck v. Superior C ourt

, 66 Ariz. 320 (1947).

¶69 Instead, the Court merely substituted its judgment for the delegates who dra fted the constitution

, ran roughshod over the people who

ratified it

, and bolstered its holding by observing with incredulity that

section 1(3) could be interpreted to give a minority such incredible power over the legislature and delay legislation. Garve y , 64 Ariz. at 352.

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32 who discussed the particulars fo r ensuring that the mechanics of referral

would not frustrate its exercise. See supra ¶¶ 43–44 . It is also shortsighted to assume that the people will reflexively place every measure without an emergency clause on the ballot. Such a dismissiv e underst anding of the nature and role of the referendum as the framers sought to preserve it is not

entitled to continued reliance.

¶71 Fourth, overturning Garvey would return this Court to a consistent understanding of the scope of measures exempt from the

referendu m as discussed in Warner

. Warner ’s overall rationale gives effect

to each clause of section 1(3) and adheres to the legislative intent as evidenced by the constitutional convention and first legislature’s enactments. Rather than dismissing Warne r ’s analy sis as “ obiter dicta, ” we should embrace it with the exceptions discussed below. Inf ra ¶ 77; see Garvey , 64 Ariz. at 350.

¶72 Fifth, the holding of Garvey as applied to the facts of this case
renders one more subset of measures, tax revenue measures , wholly exempt from the referendum without the need to comply with the emergency measures otherwise proscribed by section 1(3). Accordingly, Garvey ’s “ interpre tation

. . . was ‘ imprudent and unjust .’” Lowing , 176 Ariz.

at 107 (quoting Wiley , 174 Ariz. at 103).

¶73 Garvey is in error and should be overruled. Although this Court has “a strong respect for precedent, this respect is a reasonable one

which balks at th e perpetuation of error, and the doctrine of stare decisis should not prevail when a departure therefrom is necessary to avoid the perpetuation of pernicious error.” Garvey , 64 Ariz. at 350 (quoting State ex

rel. La Prade v. Cox , 43 Ariz. 174, 183 (1934)); s ee also Lowing , 176 Ariz. at 108 (“[A]lthough we have a healthy respect for stare decisis, w e will not be bound by a rule with nothing more than precedent to recommend it.”).

III. ANALYSIS OF S ECTION 1(3)

¶74 We now turn to a more appropriate interpretation of section 1(3) and its application to the measure before us. To facilitate the applicatio n of the entirety of section 1(3), we view it as consisting of three distinct clauses, each separated by a semicolon and working together to

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33 the referendum. We can readily identify which legislative acts pass constitutional muster for exemption from a referendum while faithfully protecting the power of referendum retained by the people of Arizona by considering the following questions: (1) what type of law has the legislature passed? (2) why is it necessary for the law to go into immediate effect? and (3) how was the law passed ?

A. What can be exempted?

¶75 The first clause of section 1(3) begins by providing that

“ [u] nder [the referendum] power

. . . five per centum of the qualified

elec tors

. . . may order the submission to the people at the polls

. . . any measure, or item, section, or part of any measure, enacted by the legislature .” The rest of the clause then identifies two distinct categories of laws that may not be subject to the people’s exercise of the referendum power as exceptions: (1) “ laws immediately necessary for the preservation of the public peace, health, or safety, or ” (2) “for the support and maintenance of the departments of the state government and state institutions .” (Emphasis added.)

.

¶76 At this point, Warner and Garvey struggled to understand the effect of the phrase “immediately necessary” in discer ning the nature of the two categories of laws that could be exempt from the referendum and engaged in differing interpretive methods. Warner , 39 Ariz. at 213 –14 ; Garvey

, 64 Ariz. at 353. However, a plain reading of the first clause in

context of the en tirety of section 1(3) obviates a need to discern whether “immediately necessary” applies to support and maintenance measures.

Se e Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal

Texts 167 (2012) ( describing the w hole -t ext c anon and noting “[t]he entirety of the document thus provides the context for each of its parts”)

.

¶77 When read in conjunction with the second clause, it is not

nec essary to engage in further interpretation to discern the phrase’s application to support and maintenance laws. It can, and should, be read as only characteristic of laws for public peace, health, or safety. But this does not mean that support and mainte nance measures are categorically exempt from the referendum.ARIZONA FREE ENTERPRISE CLUB, ET AL

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34 B. Why may laws be exempt?

¶78 The sec ond clause general ly requires that legislative acts do not become operative until ninety days after the close of the legislative

session to preserve the exercise of the referendum power with two exceptions that otherwise permit laws to go into immediate ef fect

. 9 Ariz. Const. art. 4, pt. 1, § 1(3). Th us, the second clause logically follows the first in providing a rationale for why specific categories of laws identified in the first may be exempt from a referendum.

¶79 Reading the two clauses together for the first category of laws provides that “laws immediately necessary for the preservation of the public peace, health, or safety” may be exempt from the referendum b ecause they “require earlier operation to preserve the public peace, health, or safety

. ” Sim ilarly, reading the two clauses together for the second category provides that laws “for the support and maintenance of the departments of the state government and state institutions” may be exempt when they “provide appropriations for the support and main tenance of the departments of the state and of state institutions.”

¶80 Because we read the text as it is, we disavow Warner ’s analysis that concluded “immediately necessary” and “earlier operation” applied to both categories of laws. Warner

, 39 Ariz. at 211–12. It is not necessary to apply either phrase to both categories of laws to give proper effect to section 1(3), though we agree with Warner ’s conclusion concerning the import of

the second clause. Id. at 212 (“ [T] he second clause permits the two c las ses of measures the first clause exempts from the referendum to become operative earlier than other laws, provided the preservation of the public peace, health or safety or the financial needs of the state ’ s departments and institutions require it.” ); s ee also Orme

, 25 Ariz. at 346 (“This reserved

power

. . . does not apply to acts requiring ‘earlier operation to preserve the

9 The majority’s concl usion that the reason for the ninety

- day waiting period is to “allow[] citizens an opportunity to evaluate and challenge whether the measure is truly for the ‘support and maintenance’ of the existing departments of the state and stat e institutions

, as some revenue measures may not fall into this category,” supra ¶ 25 , is true for citizens to

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35 public peace, health or safety,’ nor to those providing ‘appropriations for the support and maintenance of the departments of stat e a nd of state

institutions.’ [E] nactments of this character may be made immediately effective and thus exempted from the referendum . . . .” ).

¶81 Importantly, though, there is nothing restrictive in the second clause that would prevent its application to eith er category of laws. For example, the legislature could enact a measure for the preservation of public health that was immediately necessary and justify it as exempt because it was an appropriation for the support and maintenance of the Department of Heal th Services. Monies appropriated for pandemic operations could be one such possibility.

¶82 Likewise, there is nothing that would prevent the legislature from identifying a tax revenue measure for the support and maintenance of a departmen t of state that “ re quire[d] earlier operation to preserve the public peace, health, or safety .” In fact, the first legislature did just that with an act imposing a tax to fund the State Tax Commission

. 1912 Ariz. Sess. Laws ch. 39, § 8 (Reg. Sess.). The justification set forth was that “the provisions of th[e] Act are necessary to the public peace, health, safety , and for the support and maintenance of the departments of State government

and State institutions . . . .” Id.

¶83 This interpretation of the first two clauses of section 1(3) provides the means by which the legislature, and thereby state government, may operate quickly when called for without unduly restricting the people’s retained power of the referendum. It also serves to obviate the

need to parse the effects o f “immediately necessary” and “earlier operation,” and avoid s the need to determine whether revenues are going to go up or down if the measure is otherwise required for the preservation of the public peace, health , or safety. Otherwi se, “any act, or item, section, or part of any act, of the legislature,” remains subject to the people’s exercise of the power of the referendum subject to following the requirements of the

third clause. Ariz. Const. art. 4, pt. 1, § 1(1).

C. How may laws b e exempted from a refe rendum?

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36 clause one, determined by clause two to necessitate early operation for public peace, health, or safety, or whi ch are an appropriation for the support and maintenance of the departments of the state. To pass as an emergency measure, such laws must receive a two

- thirds approval in both

the House and Senate via a roll call vote, conta in a separate section stating

th e necessity of the law, and must receive the governor’s approval. Ariz. Const. art. 4, pt. 1, § 1(3) ; s ee also Clark

, 20 Ariz. at 547–48 (holding that gubernatorial approval does not require a governor’s signature ).

¶85 Thus , the limitations, exceptions, a nd extra steps necessary to exempt a legislative act from the referendum pursuant to section 1(3) all protect the people’s exercise of the referendum power

. As this Court wrote

in Warner

, “every act passed by the Legislatur e should be referable unless

it be a safety or support measure requiring immediate, or earlier operation ,”

a nd even then, “ only when the Legislature states this necessity in a separate section and passes the measure by a two

- thirds vote,” along with receiv ing gubernatorial approval. 39 Ariz. a t 214 ; s ee also id. (“[T] here is no such thing under the Constitution of this state as an act being ipso facto withheld from or in no event subject to the referendum.” ).

IV. A PPLICATION TO SB 1828

¶86 As a tax revenue measure, SB 1828 qualifies as a law for support and maintenance of a state department or institution

. See supra ¶ 1. It is therefore eligible for exemption from the referendum if the legislature has properly identified it as an emergency measure and enacted it accordingly, which it did not. Although it received the governor’s approval, it does not contain a separate section stating why such a law is

necessary and did not receive a two

- thirds vote by roll call in either the

House or Senat e. Fifty

- Fifth Legislature

– First Regular Sessi on Bill Status Inquiry : SB1828 , Ariz. Legislature , h ttps://apps.azleg.gov/BillStatus/Bi llOverview/76142 (last visited Aug. 15, 2022) (documenting the bill’s passage by a 16-14 vote in the Senate and a 31

- 29 vote in the House)

.

¶87 Therefore, we would affi rm the trial court

, though not due to

the nature of the measure but because the measure does not comply with the requirements of section 1(3).