The Arizona Court of Appeals late Wednesday trimmed the ability of state lawmakers to create special laws that are clearly designed to affect only one county or city.
In a unanimous decision, the judges threw out a 2010 law which required counties of more than 3 million to add two “at large” members to their community college governing boards. That clearly applied solely to Maricopa County.
Judge Michael Brown, writing for the court, said the fact that no other county could conceivably reach that level for perhaps a century shows the measure is special legislation specifically precluded by the Arizona Constitution.
While the ruling affects only this specific law, the implications are broader: Lawmakers routinely craft measures designed to affect only one county, city or special district, whether to give them special privileges or restrict their activities.
Wednesday's decision does not necessarily preclude such actions or even invalidate existing laws that might affect only one or two cities or counties, but attorney Paul Eckstein, who represented the challengers in this case, said it does mean lawmakers cannot simply create classifications at whim.
Under Arizona law, community college board members in all counties are elected by districts.
Former state Sen. Steve Gallardo said the 2010 law came about because some people were unhappy with the votes of some tea party members of the Maricopa college board. Adding two at-large members would blunt their power of the two district-elected members. Lawmakers were unwilling to change the system statewide, so they crafted the measure to apply only to colleges in counties with at least 3 million residents.
Gallardo joined with others to sue, saying one effect of the law would be to dilute minority representation, saying there is virtually no way a Hispanic could win a county-wide race. But with federal Voting Rights Act laws diluted after a 2013 U.S. Supreme Court ruling, Gallardo said it made more sense to challenge the law in state courts.
Brown said the Arizona Constitution allows special laws only in special circumstances. That includes a requirement that the classifications be related to a “legitimate governmental interest” and that the class be “elastic,” meaning those affected could move out and others could move in.
In this case, he said, the law fails.
“Even assuming a high rate of growth, the population will not reach 3 million until the end of the 21st century in Pima County and after 2090 in Pinal County,” the judge wrote. “Moreover, none of the remaining counties will reach the population threshold for at least 500 years.”
Brown rejected arguments by the state that time is immaterial and the fact that it might take even 1,000 years would be sufficient.
“Given enough time, almost anything is possible,” the judge wrote. He said the key is whether something is "reasonably attainable, which necessarily includes a temporal component.''
This isn't the first time an Arizona law has been struck as special legislation. Courts voided a 2006 law dealing with the formation of fire districts in because it applied solely to unincorporated areas where the largest nearby city has a population of between 395,000 and 500,000 and is also located within the planning are of another town with at least 100,000 people. Judges said that showed it was meant to apply only to Gilbert.
Eckstein said there is a way for legislators to make some laws apply to only certain counties: More flexibility.
For example, he said the selection of superior court judges is different for counties of at least 250,000, with applicants screened by a panel and the governor making the choice. That now applies to Maricopa, Pima and Pinal counties.
Eckstein said while smaller counties have direct election they can opt to scrap that in favor of appointment through a vote of the people.