Puente v. Asl ( 2022 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
PUENTE, et al., Plaintiffs/Appellants,
v.
ARIZONA STATE LEGISLATURE, Defendant/Appellee.
No. 1 CA-CV 20-0710
FILED 2-15-2022
Appeal from the Superior Court in Maricopa County
No. CV 2019-014945
The Honorable Joseph P. Mikitish, Judge
VACATED AND REMANDED
COUNSEL
The People’s Law Firm, Phoenix
By Stephen D. Benedetto, Heather A. Hamel
Counsel for Plaintiffs/Appellants
Statecraft PLLC, Phoenix
By Kory A. Langhofer, Thomas J. Basile
Counsel for Defendant/Appellee
PUENTE, et al. v. ASL
Opinion of the Court
OPINION
Presiding Judge Jennifer B. Campbell delivered the opinion of the Court, in
Judge Maurice Portley1 joined. Judge Samuel A. Thumma concurred in part
and dissented in part.
C A M P B E L L, Judge:
¶1 Two Arizona nonprofit corporations and three Arizona
residents (collectively, Appellants) appeal from the superior court’s order
dismissing their complaint against the Arizona State Legislature (the
Legislature). Contrary to the superior court’s ruling, we conclude that the
political-question component of the separation of powers doctrine does not
preclude judicial review of Appellants’ claim that certain members of the
Legislature violated Arizona’s open meeting law (Open Meeting Law),
A.R.S. §§ 38-431 to -431.09. Accordingly, we vacate the judgment in favor of
the Legislature and remand for further proceedings consistent with this
opinion.
BACKGROUND
¶2 Anticipating that 26 members of the Legislature (collectively,
the legislators) would attend a private three-day conference (the Summit)
hosted by the American Legislative Exchange Council (ALEC), at which
they would collaborate with corporate lobbyists and lawmakers from other
states to draft “model bills,” Appellants filed a complaint seeking
declaratory and injunctive relief. Appellants alleged that the 26 members
who planned to attend the Summit constituted quorums of certain Arizona
legislative committees and asked the superior court to: (1) declare the
legislators’ participation in the Summit a violation of the Open Meeting
Law; (2) order that all model bills drafted during the Summit and submitted
to the Legislature “be subject to the requirements” of the Open Meeting
Law; (3) find that all materials documenting the information presented at
the Summit constitute public records subject to Arizona’s public records
laws, A.R.S. §§ 39-101 to -161; and (4) enjoin members constituting any
1 The Honorable Maurice Portley, Retired Judge of the Court of Appeals,
Division One, has been authorized to sit in this matter pursuant to Article
6, Section 3, of the Arizona Constitution.
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Opinion of the Court
quorum of an Arizona legislative committee from attending any future
ALEC Summit or other similar bill-drafting events that do not comply with
the Open Meeting Law.
¶3 The Legislature moved to dismiss the complaint, asserting
Appellants had failed to serve the proper parties and state a claim for relief.
After oral argument, the superior court dismissed the complaint, reasoning
it presented a nonjusticiable political question. Appellants timely appealed.
DISCUSSION
¶4 We review the dismissal of a complaint de novo. Coleman v.
City of Mesa, 230 Ariz. 352, 355, ¶ 7 (2012). We accept as true all well-pled
factual allegations and reasonable inferences therefrom, Cullen v. Auto-
Owners Ins. Co., 218 Ariz. 417, 419, ¶ 7 (2008), and will affirm only if, as a
matter of law, Appellants “would not be entitled to relief under any
interpretation of the facts.” Coleman, 230 Ariz. at 356, ¶ 8 (quoting Fid. Sec.
Life Ins. Co. v. State Dep’t of Ins., 191 Ariz. 222, 224, ¶ 4 (1998)).
I. Political Question Doctrine
¶5 When a challenge to an executive or legislative action
involves a “political question,” the judiciary may not adjudicate the matter.
Kromko v. Ariz. Bd. of Regents, 216 Ariz. 190, 192, ¶ 12 (2007). This principle
flows from the separation of powers doctrine, which recognizes the
independence of the coordinate branches of government. Id. (citing Baker v.
Carr, 369 U.S. 186, 210-211 (1962)).
¶6 “Nowhere in the United States is [the separation of powers]
more explicitly and firmly expressed than in Arizona.” Mecham v. Gordon,
156 Ariz. 297, 300 (1988). In fact, the Arizona Constitution expressly states
that the executive, legislative, and judicial branches “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.
¶7 A determination that an issue presents a nonjusticiable
political question is not a determination that a specific governmental action
is lawful. Forty-Seventh Legislature v. Napolitano, 213 Ariz. 482, 485, ¶ 7
(2006). While a determination on the merits necessarily requires “the
exercise of judicial review,” a dismissal predicated on the political question
doctrine reflects “the abstention from judicial review.’” Id. (quoting U.S.
Dep’t of Commerce v. Montana, 503 U.S. 442, 458 (1992)).
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Opinion of the Court
¶8 Deciding whether a matter has been entrusted by the
constitution to a particular branch of government requires constitutional
interpretation, a task assigned to the judiciary. Baker, 369 U.S. at 211. We
review constitutional issues, and the interpretation of statutes, de novo.
Fragoso v. Fell, 210 Ariz. 427, 430, 432, ¶¶ 7, 13 (App. 2005).
¶9 A controversy involves a political question 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.’” Fogliano v. Brain ex rel. Cnty. of
Maricopa, 229 Ariz. 12, 20, ¶ 23 (App. 2011) (quoting Nixon v. United States,
506 U.S. 224, 228 (1993); Forty-Seventh Legislature, 213 Ariz. at 485, ¶ 7 (citing
Baker, 369 U.S. at 217). When presented with a political question, the
judiciary must decline review to avoid encroaching on the constitutional
powers of a coordinate political branch of government. See Brewer v. Burns,
222 Ariz. 234, 238, ¶ 16 (2009).
¶10 Here, the Legislature contends that whether a quorum of a
legislative committee may meet outside the view of the public is just such a
political question. In analyzing that contention, we first consider the
relevant constitutional provisions governing the Legislature. Under Article
4, Part 2, Section 8, of the Arizona Constitution, each house of the
Legislature “shall” organize itself and “determine its own rules of
procedure.” A related provision establishes that “[t]he majority of the
members of each house shall constitute a quorum to do business, but a
smaller number may meet . . . in such manner and under such penalties as
each house may prescribe.” Ariz. Const. art. 4, pt. 2, § 9.
¶11 Together, these constitutional provisions commit to the
houses of the Legislature the power to promulgate and apply their own
procedural rules. Importantly, neither provision contains any language
limiting the Legislature’s authority to self-govern.
¶12 Our determination that the Arizona Constitution assigns the
Legislature the power to create its own procedural rules does not, however,
end our inquiry. Cf. Fogliano, 229 Ariz. at 20, ¶ 24. “The ‘second critical
prong of the political question test: whether there exist judicially
discoverable and manageable standards,’ overlaps with and informs the
first prong.” Id. (quoting Kromko, 216 Ariz. at 193, ¶ 14).
¶13 Without question, no constitutional provision sets forth a
standard for evaluating the adequacy or propriety of the rules of procedure
either house has adopted. But Appellants’ claims do not require the court
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Opinion of the Court
to assess whether the Legislature acted reasonably in exercising its
constitutional prerogative to enact those rules. See United States v. Ballin, 144
U.S. 1, 5 (1892) (explaining judicial review of legislative rules of procedure
or compliance therewith is limited to whether the “rules ignore
constitutional restraints or violate fundamental rights”). Appellants do not
allege that the Legislature failed to adopt a necessary procedural rule; nor
do they ask the court to impose any such rules on the Legislature. Finally,
Appellants do not allege the legislators violated any rule either house has
adopted for itself. Instead, Appellants seek only to have the legislators
comply with the Open Meeting Law, which the Legislature enacted and to
which it expressly subjected itself. A.R.S. § 38-431.01(A) (“All meetings of
any public body shall be public meetings and all persons so desiring shall
be permitted to attend and listen to the deliberations and proceedings. All
legal action of public bodies shall occur during a public meeting.”); A.R.S.
§ 38-431(6) (defining “public body” to include “the legislature” “and all
standing . . . committees” of any public body).
¶14 Pointing to the rules of procedure adopted by each house, the
Legislature suggests those rules somehow preempt application of the Open
Meeting Law to itself. But the Legislature has not cited, and our review of
the procedural rules of each house has not revealed, any rule that conflicts
with the Open Meeting Law. Indeed, while each house has promulgated a
rule prioritizing the application of legislative rules over statutes, neither has
enacted a rule exempting itself from the Open Meeting Law.
¶15 At the same time, as noted, the Legislature did not exempt
itself when it enacted the Open Meeting Law. See Fann v. Kemp,
1 CA-SA 21-0141, 2021 WL 3674157, at *3, ¶ 15 (Ariz. App. Aug. 19, 2021)
(mem. decision) (emphasizing that the Legislature “could have completely
exempted itself” from statutory requirements but chose not to do so). In
fact, rather than exempting itself from the statute and retaining the
exclusive authority for procedural self-governance entrusted to it by the
Arizona Constitution, the Legislature expressly “chose to include itself [and
its committees] within the definition of . . . public bodies subject” to the
open-meeting requirements. Id. (concluding the Legislature is subject to the
public-records statute); A.R.S. § 38-431(6) (including “the legislature” and
its committees in the statutory definition of “public body”). By enacting a
statute that expressly imposes open-meeting requirements on itself, the
Legislature implicitly and necessarily acceded to judicial enforcement of
those requirements, even while it retained its authority under the
Constitution to adopt other procedural rules.
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II. The Legislature’s Other Arguments
¶16 Having concluded that judicial review of the Legislature’s
compliance with the Open Meeting Law is not a political question
implicating the separation of powers doctrine, we now consider whether
we may nonetheless affirm the superior court’s dismissal of the complaint
on other grounds. Chavez v. Brewer, 222 Ariz. 309, 317, ¶ 21 (App. 2009).
¶17 First, the Legislature argues that the complaint is facially
deficient because “there is not a congruence of identity” between the
allegations and the named defendant. In other words, although the only
named defendant is the Legislature, the complaint “contains no factual
allegations” that the Legislature, itself, violated the Open Meeting Law. As
the superior court noted, however, the statutory definition of public bodies
subject to the Open Meeting Law includes the Legislature and its
committees, not individual legislators. A.R.S. § 38-431(6). Having enacted
that definition, the Legislature cannot reasonably argue that it may not be
sued under the Open Meeting Law unless both houses and all their
members act in concert to violate the statute. We concur with the superior
court that the Legislature is a proper party to this action.
¶18 Second, the Legislature argues that even if the legislature that
enacted the Open Meeting Law intended to subject all future legislatures to
it, “the intent of one iteration” of the legislature may not bind a future one.
As support for this argument, the Legislature cites Higgins’ Estate v. Hubbs,
31 Ariz. 252, 264 (1926), but that case does not stand for the proposition that
the current legislature is not subject to statutes enacted by a prior
legislature. Rather, in that case, the supreme court held that one legislature
may not enact a statute that irrevocably binds successor
legislatures―meaning that the current legislature is always free to repeal or
modify previously enacted laws. Id. at 264 (explaining the legislature “may
alter, limit, or repeal, in whole or in part, any statute passed by a preceding
one” and any attempt by a legislature to prevent a subsequent legislature
from exercising these prerogatives is “of course unconstitutional, illegal,
and void”). Applying this principle here, the Open Meeting Law binds the
Legislature until it amends or repeals it.
¶19 Third, the Legislature asserts that it is wholly exempt from
compliance with the Open Meeting Law because that statute expressly
permits either house of the legislature to adopt rules exempting it from the
statutory requirements and both have done so. This contention is without
merit. While A.R.S. § 38-431.08(D) authorizes each house of the legislature
to adopt rules exempting it from the notice and agenda requirements of
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Opinion of the Court
A.R.S. § 38-431.02, and each house has adopted its own rules concerning
notice and agendas, neither house has adopted a rule exempting it from
A.R.S. § 38-431.01’s open-meeting requirements, which are the subject of
Appellants’ claims. Because Appellants allege violations of the statutory
open-meeting requirements, not violations of the statute’s notice or agenda
provisions, the Legislature’s argument is not persuasive.
¶20 Fourth, the Legislature contends that the 26 legislators who
allegedly participated in the Summit are exempt from compliance with
statutory open-meeting requirements because each is a member of the same
political party and therefore their gathering as a group constituted a
“political caucus of the legislature,” which is expressly excepted from the
Open Meeting Law. See A.R.S. § 38-431.08(A)(1) (stating the Open Meeting
Law “does not apply to . . . any political caucus of the legislature”).
¶21 Neither the definitions of the Open Meeting Law, A.R.S.
§ 38-431, nor prior case law define the term “political caucus.” In the
absence of a statutory definition, our construction of the term is guided by
the public policy declaration of the Open Meeting Law, which prescribes
that “any person or entity charged with interpret[ing]” the Open Meeting
Law “shall construe” it “in favor of open and public meetings.” A.R.S. § 38-
431.09(A). Consistent with this policy statement, Arizona Attorney General
Opinion No. I83-128, at 2 (1983) concluded that the enumerated exceptions
to the Open Meeting Law “should be construed narrowly.” See Ruiz v. Hull,
191 Ariz. 441, 449, ¶ 28 (1998) (stating that “reasoned opinion[s] of a state
attorney general should be accorded respectful consideration”). We agree.
¶22 As explained in the Attorney General’s opinion, “[t]he
ordinary meaning of ‘political caucus’ encompasses, within its terms, a
meeting of members of a legislative body who belong to the same political
party or faction to determine policy with regard to proposed legislative
action.” Ariz. Att’y Gen. Op. No. I83-128, at 1. Accordingly, “[t]he scope of
permissible political caucus activity is limited to considering party policy,
with respect to a particular legislative issue,” and “[a] public body may not
use the political caucus [exception] as a means of taking legal action in
secret.” Id. at 3.
¶23 Here, the Appellants do not allege that the 26 legislators
gathered to discuss Republican party policy solely with one another or
solely with other Republicans. Rather, they assert that the legislators met
and collaborated in secret with scores of lawmakers from other states and
hundreds of “corporate lobbyists” to draft model bills. Accepting these
allegations as true, as we must, and consistent with the statute’s policy
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Opinion of the Court
statement, we narrowly construe the term “political caucus” and conclude
that, for purposes of the Open Meeting Law, the term does not apply when
legislators of one political party gather with lawmakers from other states
and corporate lobbyists to draft legislation.
¶24 Finally, the Legislature contends that Appellants failed to
state a claim under the Open Meeting Law because they do not allege the
legislators took any “legal action” during the closed-door Summit. The
Open Meeting Law requires that “[a]ll legal action of public bodies shall
occur during a public meeting.” A.R.S. § 38-431.01(A). It defines “legal
action” as “a collective decision, commitment or promise made by a public
body.” A.R.S. § 38-431(3). The cases, however, require us to broadly
construe “legal action” to include “deliberations by a majority of a public
body” concerning any matter “that foreseeably could come to a vote by that
body.” Valencia v. Cota, 126 Ariz. 555, 556-57 (App. 1980) (quoting Ariz.
Att’y Gen. Op. 75-8, at 7 (1975) (“[A]ll discussions, deliberations,
considerations or consultations among a majority of the members of a
governing body regarding matters which may foreseeably require final
action or a final decision of the governing body, constitute ‘legal action’ and
must be conducted in open meeting, unless an executive session is
authorized.”)).
¶25 As stated, the statute defines “public body” to include the
legislature and “all standing, special or advisory committees or
subcommittees of” any “public body.” A.R.S. § 38-431(6). This definition
places committees of the two houses of the Legislature squarely within the
statute, and Appellants allege that the 26 participating legislators
constituted a quorum, or majority, of five of those committees. As such, the
Appellants allege that during closed-door Summit meetings, the legislators
“ha[d] the ability to firmly commit to introduce” model bills in one or both
houses of the legislature, thereby circumventing the public scrutiny
afforded by the Open Meeting Law.
¶26 While the Legislature correctly notes that Appellants failed to
identify any specific bill drafted during the private Summit meetings,
Appellants identified specific bills they alleged were drafted during prior
ALEC meetings and then enacted “verbatim,” and alleged it was
“reasonably foreseeable” that model bills drafted during the Summit
(which was still upcoming when Appellants filed their complaint) would
be brought to a vote in the Legislature. Under analogous circumstances, we
have held that such allegations were sufficient to support a claim of an
Open Meeting Law violation. Fisher v. Maricopa Cnty. Stadium Dist., 185
Ariz. 116, 122 (App. 1995). “While it is true that the burden of proving a
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Opinion of the Court
violation of the Open Meeting Law generally rests on the [party] asserting
the violation,” this is not so when a party alleges a violation arose during a
closed-door meeting. Id. at 120-21. Under such circumstances, the burden
of proof shifts to the public body to establish that it did not violate the Open
Meeting Law. City of Prescott v. Town of Chino Valley, 166 Ariz. 480, 486 n. 4
(1990). As this court has explained, “[r]equiring a [party] to plead and prove
specific facts regarding alleged violations that are taking place in secret is a
circular impossibility.” Fisher, 185 Ariz. at 122. Accordingly, once a party
“has filed a complaint alleging facts from which a reasonable inference may
be drawn supporting an Open Meeting Law violation, the burden shifts to
the defendant to prove that an . . . exemption” permitted the closed-door
meeting. Id.¶27 Viewing the complaint in its entirety, we conclude the
Appellants alleged sufficient facts from which a reasonable inference could
be drawn that the legislators violated the Open Meeting Law. Accordingly,
at this stage of the proceedings, the Legislature has failed to demonstrate
that the complaint should be dismissed.
CONCLUSION
¶28 For the foregoing reasons, we vacate the superior court’s
judgment and remand for proceedings consistent with this opinion.
T H U M M A, Judge, concurring in part, dissenting in part:
¶29 There is much value in the Majority’s analysis. And I agree
with many of the points made by the Majority. On the record presented,
however, I view differently the Majority’s conclusion based on the Open
Meeting Law’s exception for “any political caucus of the legislature.” For
that reason, I dissent.
¶30 Although not technically relevant to considering the grant of
a motion to dismiss, this unique case began in an atypical manner. On
December 4, 2019, Appellants filed their complaint targeting the ALEC
Summit in Scottsdale that began that same day and continued through
December 6, 2019. The complaint sought injunctive and declaratory relief,
claiming that the Summit violated or would violate the Open Meeting Law.
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Thumma, J., concurring in part and dissenting in part
Appellants, however, did not seek a temporary restraining order or a
preliminary injunction preventing participation in the Summit by any
individual or any group. In fact, Appellants did not attempt to serve the
complaint until late January 2020, weeks after the Summit had ended.
¶31 The complaint did not directly allege the legislators were
attending the Summit. Instead “[b]ased on the conduct of past convenings,
and general ALEC practice,” the complaint alleges the legislators “will
attend the Summit.” Although asserting that “agendas are intentionally
hidden from the public,” it also alleged that the Summit “will convene, in
part, to formulate ‘model bills’ that will be introduced in Arizona and
nationwide.” “Upon information and belief,” the complaint continued,
Arizona legislators “will convene at the Summit to discuss, propose, and
deliberate on a number of ‘model bills.’” The Legislature then sought
dismissal of the complaint for failure to state a claim on various grounds
discussed by the Majority.
¶32 The Majority correctly notes that: (1) a Rule 12(b)(6) dismissal
may be affirmed on different grounds; (2) the Open Meeting Law “does not
apply to . . . any political caucus of the legislature;” and (3) “political
caucus” is not a defined term under Arizona law. The Majority also quotes
Arizona Attorney General Opinion No. I83-128 (1983) for the proposition
that “[t]he ordinary meaning of ‘political caucus’ encompasses, within its
terms, a meeting of members of a legislative body who belong to the same
political party or faction to determine policy with regard to proposed
legislative action.” Opinion I83-128 adds that “implicit” in that definition
“is a requirement that the caucus be formed with members from a partisan-
elected public body.” Op. Ariz. Att’y Gen. I83-128, 1983 WL 42773, at 1.
Applying that standard to the unique record here causes me to depart from
the Majority.
¶33 It is undisputed that the 26 legislators named in the complaint
“are members of the Republican Party.” On appeal, Appellants concede
that any meetings by the required number of these individuals at the
Summit was a political caucus. In fact, Appellants’ opening brief states “[i]t
is imperative that the [Open Meeting Law] be enforced against secret
caucus meetings such as those that take place at the ALEC Summit.”
Accordingly, this unique record causes me to conclude that the “political
caucus” exception to the Open Meeting Law applies here.
¶34 As the Majority notes, exceptions to the Open Meeting Law
should be narrowly construed and Opinion I83-128 (at *2) called
“improper” any attempt to define “political caucus” as allowing “private
meetings of any public body.” As the parties concede, however, the
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Thumma, J., concurring in part and dissenting in part
Legislature itself has set forth requirements for caucus meetings, requiring
(with exceptions not applicable here) that “[a]ll meetings of majority or
minority political party caucuses of members of the House [and Senate]
shall be open to the public.” Rules of the Arizona House of Representatives
54th Legislature 2019-2020 Rule 35 (“Political Party Caucuses”); accord
Senate Rules Fifty-Fourth Legislature State of Arizona 2019-2020 Rule 31
(“Caucuses”). Appellants do not claim that these Legislative Rules conflict
with the Open Meeting Law. And the fact that the Legislature has adopted
“open to the public” Legislative Rules for caucuses does not mean that “any
political caucus of the legislature” is, somehow, governed by the Open
Meeting Law.
¶35 Appellants’ allegations may implicate a violation of these
Legislative Rules. However, Appellants have not argued, let alone shown,
that this court has jurisdiction to address, at least in the first instance,
alleged violations of the Rules of the Arizona House or Senate. See also
Arizona House Rule 1(A) (“A violation of any of the House Rules shall be
deemed disorderly behavior,” and “[t]he House may punish its members
for disorderly behavior.”).2
¶36 For these reasons, although I concur with much of the
Majority, I dissent.
AMY M. WOOD • Clerk of the Court
FILED: AA
2 These Legislative Rules answer the concern that a political caucus cannot
be used to take legal action in secret. They also account for Appellants’
conflicting arguments (1) that the ALEC Summits are “secret caucus
meetings” but (2) that the December 2019 Summit could not involve “a
protected internal caucus conversation” because, along with the 26 Arizona
legislators, “198 total registered legislators from 35 states across the
country” and “554 registered non-legislators” attended the Summit.
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