IN THE

SUPREME COURT OF THE STATE OF ARIZONA

STATE OF ARIZONA,

Appellee,

v.

ANDRE LEE JUWAUN MAESTAS,

Appellant.

No. CR-17-0193-PR

Filed May 23, 2018

Appeal from the Superior Court in Maricopa County

The Honorable Dean M. Fink, Judge

No. CR 2014-127252

VACATED IN PART

Opinion of the Court of Appeals, Division One

242 Ariz. 194 (App. 2017)

VACATED

COUNSEL:

Mark Brnovich, Arizona Attorney General, Dominic E. Draye (argued), 

Solicitor General, Joseph T. Maziarz, Chief Counsel, Criminal Appeals 

Section, Adele Ponce, Assistant Attorney General, Phoenix, Attorneys for 

State of Arizona

Thomas W. Dean (argued), Thomas W. Dean Attorney at Law, Phoenix, 

Attorney for Andre Lee Juwaun Maestas

David J. Euchner, Sarah L. Mayhew (argued), Tucson, Attorneys for 

Amicus Curiae Arizona Attorneys for Criminal Justice

Lee Phillips, Law Offices of Lee Phillips PC, Flagstaff, Attorney for Amicus 

Curiae Students for Sensible Drug Policy
STATE V. MAESTAS

Opinion of the Court

2

JUSTICE PELANDER authored the opinion of the Court, in which CHIEF 

JUSTICE BALES, VICE CHIEF JUSTICE BRUTINEL, and JUSTICES 

TIMMER and LOPEZ, and JUDGE ECKERSTROM joined.∗ JUSTICE 

BOLICK concurred.

JUSTICE PELANDER, opinion of the Court:

¶1 The Arizona Medical Marijuana Act (“AMMA”), enacted by 

voters as Proposition 203 in 2010, generally permits qualified AMMA 

cardholders to possess a limited amount of marijuana and, with certain 

exceptions and limitations, immunizes their AMMA-compliant possession 

or use from “arrest, prosecution or penalty in any manner.” A.R.S. 

§ 36-2811(B). Among its limitations, the AMMA prohibits the possession or 

use of medical marijuana at certain specified locations. A.R.S. § 36-2802(B). 

In 2012, the Arizona Legislature added another location by enacting a 

statute under which “a person, including [a qualified AMMA cardholder], 

may not lawfully possess or use marijuana on the campus of any public 

university, college, community college or postsecondary educational 

institution.” A.R.S. § 15-108(A). Because that statute violates Arizona’s 

Voter Protection Act (“VPA”) with respect to AMMA-compliant marijuana 

possession or use, we hold it unconstitutional as applied to the university 

student/cardholder in this case.

I. BACKGROUND

¶2 In March 2014, an Arizona State University police officer 

arrested Andre Lee Juwaun Maestas after the officer observed Maestas 

sitting in a road near Maestas’s dormitory on the university campus. The 

officer searched Maestas and found a valid AMMA registry identification 

card in Maestas’s wallet. After Maestas admitted that he had marijuana in 

his dorm room, the officer obtained a search warrant, searched Maestas’s 

dorm room, and found two envelopes containing 0.4 grams of marijuana. 

(The AMMA provides that an “[a]llowable amount of marijuana” is “[t]wo-

 ∗

 Justice Andrew W. Gould has recused himself from this case. Pursuant 

to article 6, section 3 of the Arizona Constitution, the Honorable Peter J. 

Eckerstrom, Chief Judge of the Arizona Court of Appeals, Division Two, 

was designated to sit in this matter.
STATE V. MAESTAS

Opinion of the Court

3

and-one-half ounces of usable marijuana.” A.R.S. § 36-2801(1)(a)(i). 

Maestas’s 0.4 grams of marijuana is roughly equivalent to 0.014 ounces.)

¶3 The State charged Maestas with obstructing a public 

thoroughfare and possession of marijuana. Before trial, Maestas moved to 

dismiss the marijuana-possession charge, arguing that his possession was 

AMMA-compliant and he was therefore immune from prosecution under 

§ 36-2811(B). The State opposed the motion, arguing that Maestas’s 

AMMA-compliant possession of marijuana was nevertheless unlawful 

under § 15-108(A), which prohibits even AMMA cardholders from 

possessing marijuana on public college and university campuses. The 

superior court denied Maestas’s motion, convicted him on both counts after 

a bench trial, imposed a fine on the marijuana-possession charge, and 

placed him on probation for one year.

¶4 The court of appeals vacated Maestas’s conviction for 

possession of marijuana and held that § 15-108(A) is unconstitutional under 

the VPA. State v. Maestas, 242 Ariz. 194, 198 ¶ 16 (App. 2017). As a threshold 

matter, the court ruled that the constitutionality of § 15-108(A) is a 

justiciable question because the political question doctrine is inapplicable 

here. Id. at 196–97 ¶¶ 9–10. On the merits, the court reasoned that the 

VPA’s requirements apply to § 15-108(A) because the statute amends the 

AMMA by re-criminalizing AMMA “cardholders’ marijuana possession on 

college and university campuses.” Id. at 197 ¶¶ 12–13. The court further 

concluded that § 15-108(A) violates the VPA because the AMMA’s purpose 

is to protect AMMA “cardholders from criminal and other penalties,” id. at 

196 ¶ 8, and § 15-108(A) does not further that purpose but rather 

“eliminates some of [the AMMA’s] protections,” id. at 197 ¶ 13.

¶5 We granted review because § 15-108(A)’s validity presents a

recurring legal question of statewide importance. We have jurisdiction 

under article 6, section 5(3), of the Arizona Constitution and A.R.S. 

§ 12-120.24.

II. DISCUSSION

¶6 We review the constitutionality of a statute de novo. Biggs v. 

Betlach, 243 Ariz. 256, 258 ¶ 9 (2017). “When the statute in question involves 

no fundamental constitutional rights or distinctions based on suspect 

classifications, we presume the statute is constitutional and will uphold it 

unless it clearly is not.” Cave Creek Unified Sch. Dist. v. Ducey, 233 Ariz. 1, 5 

¶ 11 (2013).

A.
STATE V. MAESTAS

Opinion of the Court

4

¶7 The State first contends that the constitutionality of 

§ 15-108(A) under the VPA is a non-justiciable political question because 

the AMMA “authorizes universities to restrict and penalize cardholders to 

protect federal funding, and the necessity of such measures” is delegated to 

the legislature. We disagree.

¶8 “The Arizona Constitution entrusts some matters solely to the 

political branches of government, not the judiciary.” Ariz. Indep. 

Redistricting Comm’n v. Brewer, 229 Ariz. 347, 351 ¶ 16 (2012); see also Ariz. 

Const. art. 3 (providing that the three departments of Arizona’s

government “shall be separate and distinct, and no one of such departments 

shall exercise the powers properly belonging to either of the others”).

¶9 Flowing from “the basic principle of separation of powers,” a 

non-justiciable political question is presented when “there is a textually 

demonstrable constitutional commitment of the issue to a coordinate 

political department; or a lack of judicially discoverable and manageable 

standards for resolving it.” Kromko v. Ariz. Bd. of Regents, 216 Ariz. 190, 192 

¶¶ 11–12 (2007) (internal quotation marks omitted) (quoting Nixon v. United 

States, 506 U.S. 224, 228 (1993)); see also Forty-Seventh Legislature v. 

Napolitano, 213 Ariz. 482, 485 ¶ 7 (2006) (defining “[p]olitical questions” as 

“decisions that the constitution commits to one of the political branches of 

government and raise issues not susceptible to judicial resolution according 

to discoverable and manageable standards”). Neither aspect of this test is 

present here.

¶10 The State argues that there is a “textually demonstrable 

constitutional commitment of the issue” to the legislature, Kromko, 216 Ariz. 

at 192 ¶ 11, because the Arizona Constitution commits to that branch the 

power to establish and maintain “a general and uniform public school 

system,” which includes universities, Ariz. Const. art. 11, § 1(A)(6). But the 

legislature’s power to maintain universities is limited by the VPA.

¶11 As relevant here, the Arizona Constitution was amended in 

1998 when voters approved the VPA to expressly limit the legislature’s 

“authority to amend measures approved by voters in initiative elections.” 

Ariz. Early Childhood Dev. & Health Bd. v. Brewer, 221 Ariz. 467, 469 ¶ 6 (2009); 

see also Ariz. Const. art. 4, pt. 1, § 1(6)(C) (providing that the legislature may 

only amend a voter initiative if “the amending legislation furthers the 

purposes of such measure and at least three-fourths of the members of each 

house of the legislature . . . vote to amend such measure”). Adopting the 

State’s argument would mean that, notwithstanding the VPA’s limitations 

on the legislature’s power, courts could not adjudicate any VPA challenge 
STATE V. MAESTAS

Opinion of the Court

5

to a law enacted in a subject area over which the legislature exercised power 

given to it by the constitution. Such an interpretation would render the 

VPA meaningless. Accordingly, there is not a “textually demonstrable 

constitutional commitment of the issue” presented here, i.e., whether 

§ 15-108(A) is constitutional under the VPA, to “a coordinate political 

department.” Kromko, 216 Ariz. at 192 ¶ 11 (internal quotation marks 

omitted) (quoting Nixon, 506 U.S. at 228).

¶12 In addition, there is not “a lack of judicially discoverable and 

manageable standards for resolving” this issue. Id. We have ruled on VPA 

challenges in the past, see, e.g., Cave Creek Unified Sch. Dist., 233 Ariz. at 4–8 

¶¶ 8–25; Brewer, 221 Ariz. at 469–72 ¶¶ 5–18, and no legal obstacle prevents

us from resolving the challenge raised here. Accordingly, we conclude that 

the issue presented is justiciable.

B.

¶13 The State next contends that the VPA’s requirements do not 

apply to § 15-108(A) because the legislature did not amend the AMMA 

when it enacted § 15-108(A). The State reasons that the AMMA “expressly 

authorizes restrictions for cardholders on university campuses” and 

“expressly authorizes penalties in order to assure continued access to 

federal funding.” Alternatively, the State argues that even if the VPA’s 

requirements apply to § 15-108(A), the legislature complied with those 

requirements because at least three-fourths of the members of each chamber

voted to enact § 15-108(A), and that law is consistent with the AMMA when 

the statutory scheme is viewed as a whole. We disagree.

¶14 The VPA limits the legislature’s power to amend, repeal, or 

supersede voter initiatives. See Ariz. Const. art. 4, pt. 1, § 1(6)(B)–(C), (14). 

A threshold question, therefore, is whether the legislature amended, 

repealed, or superseded the AMMA when it enacted § 15-108(A). It is 

undisputed that § 15-108(A) did not repeal or supersede the AMMA, but 

the parties disagree about whether § 15-108(A) amends it.

¶15 The AMMA specifies the circumstances under which the 

legislature may impose “civil, criminal or other penalties” when a person, 

including a qualified AMMA cardholder, possesses or uses marijuana. 

A.R.S. § 36-2802(B). Specifically, the AMMA “does not authorize any 

person” to possess or use marijuana in the following locations: “[o]n a 

school bus,” “[o]n the grounds of any preschool or primary or secondary 

school,” and “[i]n any correctional facility.” § 36-2802(B)(1)–(3). In general, 

when the legislature (or voters) expressly prescribes a list in a statute (or 
STATE V. MAESTAS

Opinion of the Court

6

initiative), “we assume the exclusion of items not listed.” State v. Ault, 157 

Ariz. 516, 519 (1988). Because the AMMA sets forth a list of locations where 

the legislature may impose “civil, criminal or other penalties” when a 

person possesses or uses marijuana, § 36-2802, and because that list does 

not include college and university campuses (unlike pre-, primary-, and 

secondary-school grounds), we assume that the voters did not intend to 

criminalize AMMA-compliant possession or use of marijuana on public 

college and university campuses.

¶16 By its terms, § 15-108(A) amends the AMMA by adding a 

location to the AMMA’s list of specified locations where the legislature may 

impose “civil, criminal or other penalties” for a person’s possession or use

of marijuana otherwise allowed under the AMMA. § 36-2802. Indeed, 

§ 15-108(A) begins by stating that “[i]n addition to the limitations 

prescribed in” § 36-2802(B), a person “may not lawfully possess or use 

marijuana on the campus of any public university, college, community 

college or postsecondary educational institution.” Consequently, the 

legislature amended the AMMA when it enacted § 15-108(A) because that 

statute makes AMMA-compliant possession or use of marijuana on public 

college and university campuses criminal.

¶17 Although this conclusion is apparent from the statute’s terms, 

it is also bolstered by § 15-108’s legislative history. When that proposed 

law was introduced in the legislature as House Bill 2349, the Bill Summary 

noted that it would “require the affirmative vote of at least three-fourths of 

the members of each house of the Legislature” to be enacted. Ariz. H.B.

Summary for H.B. 2349, 50th Leg., 2d Reg. Sess. (Jan. 23, 2012). With one 

exception that is inapplicable here, see Ariz. Const. art. 9, § 22(A) (requiring 

three-fourths vote of legislature to override governor’s veto of revenueraising act), such a requirement applies only when a legislative enactment

is subject to the VPA. Accordingly, when House Bill 2349 was introduced, 

the bill’s sponsor presumably understood that its provisions would amend 

the AMMA if enacted.

¶18 For the foregoing reasons, we conclude that the VPA’s 

restrictions apply to the legislature’s enactment of § 15-108(A) because it

amends the AMMA. We next turn to whether the legislature complied with 

the VPA’s requirements when it enacted § 15-108(A).

¶19 To comply with the VPA, the legislature may constitutionally 

amend a voter initiative only if “the amending legislation furthers the 

purposes of such measure and at least three-fourths of the members of each 

house of the legislature . . . vote to amend such measure.” Ariz. Const. art. 
STATE V. MAESTAS

Opinion of the Court

7

4, pt. 1, § 1(6)(C). Here, “at least three-fourths of the members of each house 

of the legislature” voted to enact § 15-108(A). Id. The dispositive question, 

therefore, is whether § 15-108(A) “furthers the purposes” of the AMMA. Id. 

It does not.

¶20 The AMMA “permits those who meet statutory conditions to 

[possess and] use medical marijuana.” Reed-Kaliher v. Hoggatt, 237 Ariz. 

119, 122 ¶ 7 (2015). “Because marijuana possession and use are otherwise 

illegal in Arizona, . . . the drafters [of the AMMA] sought to ensure that 

those using marijuana pursuant to [the] AMMA would not be penalized for 

such use.” Id. Indeed, this purpose is made explicit in the AMMA’s voter 

initiative statements. See Proposition 203 § 2(G) (2010) (stating that the 

purpose of the AMMA “is to protect patients with debilitating medical 

conditions . . . from arrest and prosecution, [and] criminal and other 

penalties . . . if such patients engage in the medical use of marijuana”). 

Criminalizing AMMA-compliant marijuana possession or use on public 

college and university campuses plainly does not further the AMMA’s 

primary purpose as expressed in those statements supporting the voter 

initiative. Section 15-108(A) does not “protect” qualifying AMMA 

cardholders from criminal penalties arising from AMMA-compliant 

marijuana possession or use on public college and university campuses, but 

rather subjects them to such penalties. Therefore, because § 15-108(A) does 

not further the purpose of the AMMA, we hold that § 15-108(A) violates the 

VPA as applied to AMMA-compliant marijuana possession or use.

¶21 In so holding, we disagree with the State that the AMMA’s 

anti-discrimination provision, A.R.S. § 36-2813(A), authorizes the 

legislature to criminalize AMMA-compliant marijuana possession or use 

on public college and university campuses to preserve federal funding. 

Section 36-2813(A) provides that a “school” may “penalize a person solely 

for his status as a cardholder” only if “failing to do so would cause the 

school . . . to lose a monetary or licensing related benefit under federal law 

or regulations.”

¶22 By its terms, § 36-2813(A) does not authorize the legislature to 

criminalize AMMA-compliant marijuana possession or use on public 

college and university campuses for two reasons. First, § 36-2813(A) 

authorizes a “school” to penalize a cardholder to preserve federal funding. 

But a school is not authorized to enact criminal laws. Therefore, any 

authority that is vested in a school under this statute does not extend to 

criminalizing AMMA-compliant marijuana possession or use.
STATE V. MAESTAS

Opinion of the Court

8

¶23 Second, even if § 36-2813(A) did authorize the legislature to 

take some action to preserve federal funding, criminalizing AMMAcompliant marijuana possession or use is impermissible because it is

unnecessary to achieve the statute’s purpose. The State has not shown that 

failing to “penalize a person solely for his status as a cardholder . . . would 

cause” a school to lose federal funding. § 36-2813(A) (emphasis added). A 

university can comply with federal funding requirements by adopting and 

implementing “a program to prevent the use of illicit drugs.” 20 U.S.C. 

§ 1011i(a). The program must prohibit “the unlawful possession . . . of illicit 

drugs,” id. § 1011i(a)(1)(A), and describe “the applicable legal sanctions 

under local, State, or Federal law for the unlawful possession . . . of illicit 

drugs,” id. § 1011i(a)(1)(B), which may include “referral for prosecution,” 

id. § 1011i(a)(1)(E).1 But a university does not have to guarantee 

prosecution for violations of its program. And it can refer violations of its 

program to the federal prosecutor. The State has not shown that a 

university would lose (or has lost) federal funding if a state prosecutor did 

not prosecute violations of the university’s program. Consequently, we 

conclude that A.R.S. § 36-2813(A) does not authorize the legislature to 

criminalize AMMA-compliant marijuana possession or use on public 

university and college campuses to preserve federal funding.

III. CONCLUSION

¶24 For the reasons stated above, we vacate Maestas’s conviction 

for possession of marijuana. We also vacate the court of appeals’ opinion.

 1 Arizona State University seemingly complies with federal law through its 

anti-drug policy. See Ariz. State Univ., SSM 106–03: Alcohol and Other Drugs 

on Campus, https://www.asu.edu/aad/manuals/ssm/ssm106-03.html

(last modified Aug. 1, 2014) (providing that “ASU prohibits the unlawful 

use, possession, production, manufacture, and distribution of alcohol and 

other drugs and controlled substances” and that “[a]nyone who violates 

federal, state, or local law regarding alcohol or other drugs, including the 

illegal possession of drug paraphernalia, or who otherwise engages in 

illegal conduct is subject to prosecution and punishment by criminal and 

civil authorities in addition to disciplinary or administrative sanctions 

issued by the university”).
STATE V. MAESTAS

JUSTICE BOLICK, concurring

9

JUSTICE BOLICK, concurring.

¶25 I agree completely with the Court’s opinion but write 

separately to question our continued adherence to part of the political 

question doctrine that does not appear to comport with foundational 

constitutional principles.

¶26 We decide this case based on the familiar doctrine that “a nonjusticiable political question is presented when ‘there is a textually 

demonstrable constitutional commitment of the issue to a coordinate 

political department; or a lack of judicially discoverable and manageable 

standards for resolving it.’” Supra ¶ 9 (quoting Kromko, 216 Ariz. at 192 

¶¶ 11–12). For purposes of this opinion, I will refer to the first part of the 

test as the “textual requirement” and the second as the “prudential 

requirement.” I agree with the Court that the question here survives both 

parts of the test and therefore presents a justiciable case.

¶27 It appears that we largely adopted the political question 

doctrine, or at least the prudential requirement, as received wisdom from 

the United States Supreme Court. See, e.g., Kromko, 216 Ariz. at 192–93 

¶¶ 11–12 (citing to United States Supreme Court case law and the “federal 

political question doctrine”). We should welcome wisdom from any 

source, but if we embrace it we should make sure it is, indeed, wisdom. The 

textual requirement, which forbids the judiciary from ruling on matters 

constitutionally entrusted to the political branches of government, is central 

to our system of separation of powers. But the judicially created prudential 

requirement, as a standalone doctrine, does quite the opposite by 

abdicating the judiciary’s central role of constitutional interpretation.

¶28 The textual requirement of the political question doctrine is 

deeply embedded in our constitutional design, but the prudential 

requirement is not. The Constitution’s framers intended that courts would 

not decide matters entrusted to other branches of government, but equally 

intended that the courts and not the other branches would determine 

respective constitutional boundaries. In The Federalist No. 78, Alexander 

Hamilton articulated a bright line of demarcation between the two, 

recognizing hegemony of the political branches in matters assigned to their 

discretion, but recognizing the Constitution as “fundamental law” and that 

it “belongs to [the judiciary] to ascertain its meaning.” The Federalist No. 78, 

at 430 (Alexander Hamilton) (Gideon ed., 2006). Hamilton described the 

judiciary as “the weakest of the three departments” for it possesses none of 

the powers assigned to the other branches. Id. at 429. But “the courts were 

designed to be an intermediate body between the people and the 
STATE V. MAESTAS

JUSTICE BOLICK, concurring

10

legislature, in order, among other things, to keep the latter within the limits 

assigned to their authority.” Id. at 430. By contrast, “[i]f it be said that the 

legislative body are themselves the constitutional judges of their own 

powers, . . . it may be answered, that this cannot be the natural presumption, 

where it is not to be collected from any particular provisions in the 

constitution.” Id. Constitutional limits “can be preserved in practice no 

other way than through the medium of courts of justice, whose duty it must 

be to declare all acts contrary to the manifest tenor of the constitution void. 

Without this, all the reservations of particular rights or privileges would 

amount to nothing.” Id. at 429.

¶29 That understanding was reflected in Marbury v. Madison, in 

which the Supreme Court set forth the judiciary’s role in constitutional 

adjudication and first articulated the political question doctrine. 5 U.S. 137, 

165–66, 176–78 (1803). The Court recognized that under the Constitution, 

“the President is invested with certain important political powers, in the 

exercise of which he is to use his own discretion, and is accountable only to 

his country in his political character, and to his own conscience.” Id. at 165–

66. Actions pursuant to such discretion “can never be examinable by the 

courts.” Id. at 166. But in matters not expressly delegated to the other 

branches, the Court made clear that the judiciary must interpret 

constitutional boundaries. Id. at 176–78. “It is emphatically the province 

and duty of the judicial department to say what the law is,” and 

constitutional interpretation “is of the very essence of judicial duty.” Id. at 

177–78.

¶30 As the Court declared in Marbury, “[i]t cannot be presumed 

that any clause in the constitution is intended to be without effect; and 

therefore such construction is inadmissible, unless the words require it.” Id.

at 174. Leaving interpretation to the other branches renders constitutional 

rights and limits “mere surplusage” and “entirely without meaning.” Id. 

There are no inkblots in the Constitution. See Robert H. Bork, The Tempting 

of America 166 (1990) (examining the Ninth Amendment and concluding 

that a “provision whose meaning cannot be ascertained is precisely like a 

provision that is written in Sanskrit or is obliterated past deciphering by an 

ink blot. No judge is entitled to interpret an ink blot on the ground that 

there must be something under it.”). When the judiciary fails to interpret 

and enforce constitutional rights and limits, it shrinks from its central duty 

and drains the Constitution of its intended meaning.

¶31 The prudential requirement of the political question doctrine 

traces its origins to New Deal jurisprudence but “was given its canonical 

modern formulation” in Baker v. Carr, 369 U.S. 186 (1962). See Joshua S. 
STATE V. MAESTAS

JUSTICE BOLICK, concurring

11

Stillman, Note, The Costs of “Discernible and Manageable Standards” in Vieth

and Beyond, 84 N.Y.U. L. Rev. 1292, 1298 (2009). In Baker, the Supreme Court 

set forth six bases for non-justiciability of a case as presenting a political 

question. 369 U.S. at 217. The first two are whether there is “a textually 

demonstrable constitutional commitment of the issue to a coordinate 

political department” or “a lack of judicially discoverable and manageable 

standards for resolving it.” Id. While the latter four are rarely invoked as 

bases for non-justiciability, the first two typically are paired as a unified 

test, as we have applied it here. But the two requirements are in 

considerable tension. The first instructs the courts, quite properly, not to 

intrude in a matter constitutionally entrusted to another branch of 

government. The second implies that the matter is not constitutionally 

entrusted to another branch, but that for prudential reasons we should not 

decide it anyway, leading to the inevitable consequence that another branch 

of government will decide the constitutional limits of its own power. As 

noted above, the framers invested the judiciary with the duty to make sure 

that would never happen. See Marbury, 5 U.S. at 176–78.

¶32 In interpreting the Arizona Constitution and determining 

access to our courts, this Court is free, of course, to adopt or decline to adopt 

prudential doctrines from the Supreme Court. See, e.g., Sears v. Hull, 192 

Ariz. 65, 71 ¶¶ 24–25 (1998) (“Because our state constitution does not 

contain a ‘case or controversy’ provision analogous to that of the federal 

constitution, we are not constitutionally constrained to decline jurisdiction 

based on lack of standing.”). In my view, especially where vindication of

individual rights is concerned, we should not adopt prudential doctrines 

that restrict access to the courts or judicial resolution of constitutional issues 

without careful consideration. The textual requirement of the political 

question doctrine plainly accords with the Arizona Constitution, which 

commands that our branches of government “shall be separate and distinct, 

and no one of such departments shall exercise the powers properly 

belonging to either of the others.” Ariz. Const. art. 3. But the prudential 

requirement, which avoids constitutional interpretation and enforcement, 

seems at odds with any constitution that establishes individual rights and 

limits governmental powers.

¶33 The United States Supreme Court has rarely used the 

prudential requirement of the political question doctrine as a standalone 

basis for a non-justiciability ruling. See Stillman, supra at 1299 (stating that 

the plurality opinion in Vieth v. Jubelirer, 541 U.S. 267 (2004), was “unique” 

in that “it relied on the lack of judicially discernible and manageable 

standards as an independently sufficient rationale” under the political 

question doctrine “without any genuine argument that the issue was 
STATE V. MAESTAS

JUSTICE BOLICK, concurring

12

textually committed to a coordinate federal branch”); see also Nixon, 506 U.S. 

at 228–30 (holding that the question was non-justiciable because it was 

textually delegated to another branch and reasoning that “the use of the 

word ‘try’ in the first sentence of the Impeachment Trial Clause lacks 

sufficient precision to afford any judicially manageable standard of review 

of the Senate’s actions”).

¶34 This Court applied the prudential requirement doctrine to 

hold an issue non-justiciable in Kromko, 216 Ariz. at 194 ¶ 21. In so doing, 

Kromko quoted Nixon for the proposition that “the concept of textual 

commitment to a coordinate political department is not completely separate 

from the concept of a lack of judicially discoverable and manageable 

standards,” as “the lack of judicially manageable standards may strengthen 

the conclusion that there is a textually demonstrable commitment to a 

coordinate branch.” Kromko, 216 Ariz. at 193 ¶ 14 (quoting Nixon, 506 U.S. 

at 228–29). The Court went on to cite both lack of judicially manageable 

standards and textual commitment to other branches of government to 

support its decision. Id. at 193 ¶¶ 13–14, 194 ¶ 21.

¶35 Whether the prudential requirement standing alone renders 

an issue non-justiciable thus remains an open question. Regardless, in an 

appropriate case, I would reexamine the prudential requirement of our 

political question doctrine to determine whether it comports with our 

constitutional design. For as the opening words of our Declaration of 

Rights proclaim: “A frequent recurrence to fundamental principles is 

essential to the security of individual rights and the perpetuity of free 

government.” Ariz. Const. art. 2, § 1.