The goal of a proposed "right to hunt" constitutional amendment is to make it harder to put anti-hunting initiatives on the ballot, a supporter has testified.
"Wildlife management at the ballot box is a loser for hunters and a loser for conservation and wildlife," Darren LaSorte, the National Rifle Association's hunting policy manager, testified at the Arizona Legislature last winter.
But if Proposition 109 passes Nov. 2, its effect on voter initiatives may not be that clear-cut, say two legal experts.
Because 109 says nothing about initiatives - only that the Legislature would have exclusive authority to make wildlife laws - it's not certain that a court would throw such initiatives off a ballot, the experts said.
Retired Arizona State University Law School Dean Paul Bender, who specializes in constitutional rights, and retired Arizona Chief Justice Stanley Feldman also said:
• The proposition's ban on unreasonable hunting and fishing restrictions or on "traditional means and methods" of wildlife management could trigger extensive litigation.
• They agree with 109 supporters that besides possible limits on voter wildlife initiatives, the proposal would not give the Legislature new power over wildlife management.
• They disagree over whether 109 could allow a court to overturn a 1996 voter-approved initiative banning leg-hold trapping.
Speaking about voter rights, Bender said that if 109 is to take away the fundamental right to a voter initiative, it must be absolutely clear that that's what it means. Bender noted that none of 17 pro-109 arguments in the secretary of state's election publicity pamphlet discuss its impact on voter initiatives.
"This proposition does not say that. This is the most fundamental right in the Constitution, the right of initiative and referendum," Bender said. "There's a good argument that it does take away the initiative power, but when a court deals with fundamental rights, it is not unusual for them to say, 'I will not assume this right is taken away unless the amendment unambiguously takes it away.' "
Feldman said he thinks the stronger argument would be that 109 does limit wildlife initiatives. But he said he's sure the issue, if approved, will draw a court challenge, and he couldn't predict who would win. Feldman retired from the Arizona Supreme Court in 2002 after serving 21 years, including five years as chief justice.
Supporters of 109 acknowledged that their proposal may contain uncertainties, particularly about the trapping ban. But they said there have been few if any lawsuits sparked by similar pro-hunting propositions that have passed in 10 other states. They said they believe 109 will allow voter initiatives to change wildlife law as long as they meet 109's requirements, including that they be reasonable and serve the purposes of wildlife conservation and management.
"The practical effect of this will be that the Humane Society will just say that the cost of doing business in Arizona is just too high so let's not try to ban hunting here," said Todd Rathner, a Tucson attorney and NRA board member. "They will go to a state where they have a better chance of passing their agenda. We will have accomplished our goal."
Opponents say that Bender and Feldman's comments show the proposition is poorly drafted and will be difficult to enforce fairly.
"If you talked to 10 lawyers about the impact of Proposition 109, you would get 20 different opinions," said Stephanie Nichols-Young, a Phoenix lawyer and 109 opponent who is president of the Arizona Animal Defense League.
The proposition says the Legislature has exclusive authority to regulate "the manner, methods or seasons for hunting, fishing and harvesting wildlife." It also says the Legislature can delegate this authority to a Game and Fish commission. Supporters of 109 have said that because it would amend the state Constitution, wildlife initiatives that don't meet 109's standards could get on the ballot only if opponents or critics of hunting also try to amend the Constitution, which requires twice as many signatures as an initiative to change a law. Opponents have called this "a legislative power grab."
"If 109 passes, that will put the Supreme Court in a difficult position," Bender said. Do they interpret the proposition in a way that the proponents meant it to be interpreted, but that they were afraid to tell the voters about?"
Bender agreed with 109 supporters that if courts allow voter wildlife-initiatives, they would have to meet 109's standards. But if the courts decided voters couldn't bring wildlife initiatives to the ballot, they probably wouldn't make a distinction between those that do and don't meet the standards, he said.
Feldman and Bender agreed that the Legislature already has the authority to regulate hunting and fishing under state law, so this measure wouldn't change much there. The only exception is that giving the Legislature exclusive authority "may well destroy the right of the people" to initiate such legislation themselves, Feldman said.
Contact reporter Tony Davis at email@example.com or 806-7746.