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Legal Corner: Set In Stone
By Joni Hoffman, League General Counsel
As you go to the polls and vote on statewide ballot propositions next month, you should be aware of a state constitutional provision that almost ensures
that what is passed can never be changed or repealed in the future by the state Legislature. Is this a good or bad thing? It depends on the issue and
who you ask.
Before 1998, the Arizona Constitution made it very easy for the Arizona Legislature to amend or repeal laws that had passed by the people at the general
election. The constitution allowed the Legislature to repeal or amend initiative or referendum measures unless they were approved by a majority vote of
the qualified electors. This provision was practically meaningless because it is almost impossible for a proposition to receive a majority vote of all
of the qualified electors in the state. In fact, no one can remember it ever happening.
The constitutional provision went unnoticed until 1997, when the Legislature passed a bill that gutted a ballot measure that had appeared on the 1996
general election ballot. That ballot measure allowed doctors to prescribe medical marijuana under certain circumstances. During the following legislative
session, the Legislature repealed this law and replaced it with a similar law. But, the legislation stated that the law would not go into effect until
either Congress or the Food and Drug Administration authorized the medical use of marijuana and the Drug Enforcement Agency removed marijuana from the
list of Schedule I drugs.
The proponents of the 1996 medical marijuana ballot measure, upset by what it felt was the Legislature thwarting the will of the people, obtained enough
petition signatures to put a measure on the 1998 statewide ballot to change the Arizona Constitution to make it almost impossible to change a voter
approved measure. That proposition, which easily passed, was numbered as Proposition 105 and has been known by that nickname ever since. It applies
to any statutory ballot measure from 1998 forward. Changes to the Arizona Constitution must still be voted on by Arizona citizens.
Prop 105 prohibits the Legislature from amending or repealing a voter approved statutory change unless each house of the Legislature passes the amendment
or repeal by a three-fourths vote. In addition the bill must further the purpose of the original ballot measure.
The proponents of Prop 105 appear to have accomplished their goal. Of the numerous ballot measures that are now subject to Prop 105's restrictions, only
a handful of changes have been made to them. Is this sort of restriction on the Legislature a good or bad thing?
Proponents of Prop 105 argue that the Legislature should not usurp the will of the voters by making changes to statutes that they have enacted. Also, some
proponents argue that if the Legislature is not responding adequately to the needs of the citizens, they should be able to put measures on the ballot that
are out of the reach of the Legislature.
Critics of Prop 105 argue that the measure ties the hands of the Legislature too much and interferes with their constitutional duties as elected representatives.
Also, if there are unintended consequences of a ballot measure, if technical changes are needed or if circumstances in the future make a ballot measure outdated,
it will be almost impossible to change. There are ballot measures that require the Legislature to appropriate certain monies, leaving some of the state budget
decisions out of their hands. Critics argue that as time goes on, there might not be much policy-making decisions left for the Legislature with respect to the
appropriation of monies.
Whether you think Prop 105 was a good idea or a bad idea, just make sure you consider it when you vote on a ballot measure. It will probably be the law forever!
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League of Arizona Cities and Towns
1820 W. Washington St.
Phoenix, AZ 85007
Phone: 602-258-5786
Fax: 602-253-3874
http://www.azleague.org
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