biggs/tobin v. Hon. cooper/brewer/betlach

IN THE
SUPREME COURT OF THE STATE OF ARIZONA
ANDY BIGGS; ANDY TOBIN; NANCY BARTO; JUDY BURGES;
CHESTER CRANDELL; GAIL GRIFFIN; AL MELVIN; KELLI WARD;
STEVE YARBROUGH; KIMBERLY YEE; JOHN ALLEN; BRENDA BARTON;
SONNY BORRELLI; PAUL BOYER; KAREN FANN; EDDIE FARNSWORTH;
THOMAS FORESE; DAVID GOWAN; RICK GRAY; JOHN KAVANAGH;
ADAM KWASMAN; DEBBIE LESKO; DAVID LIVINGSTON; PHIL LOVAS;
J.D. MESNARD; DARIN MITCHELL; STEVE MONTENEGRO; JUSTIN OLSON;
WARREN PETERSEN; JUSTIN PIERCE; CARL SEEL; STEVE SMITH;
DAVID STEVENS; BOB THORPE; KELLY TOWNSEND; MICHELLE UGENTI;
JEANETTE DUBREIL; KATIE MILLER; TOM JENNEY,
Petitioners,
v.
THE HONORABLE KATHERINE COOPER, JUDGE OF THE SUPERIOR COURT OF
THE STATE OF ARIZONA, IN AND FOR THE COUNTY OF MARICOPA,
Respondent Judge,
JANICE K. BREWER, IN HER OFFICIAL CAPACITY AS GOVERNOR OF ARIZONA;
THOMAS J. BETLACH, IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE
ARIZONA HEALTH CARE COST CONTAINMENT SYSTEM,
Real Parties in Interest.
No. CV-14-0132-PR
Filed December 31, 2014
Appeal from the Superior Court in Maricopa County
The Honorable Katherine M. Cooper, Judge
No. CV2013-011699
REVERSED IN PART; REMANDED
Opinion of the Court of Appeals, Division One
234 Ariz. 515, 323 P.3d 1166 (2014)
AFFIRMED IN PART; VACATED IN PART
BIGGS ET AL. v. HON. COOPER ET AL.
Opinion of the Court
COUNSEL:
Clint Bolick, Kurt M. Altman, and Christina Sandefur (argued), Scharf-
Norton Center for Constitutional Litigation at the Goldwater Institute,
Phoenix, Attorneys for Andy Biggs; Andy Tobin; Nancy Barto; Judy Burges;
Chester Crandell; Gail Griffin; Al Melvin; Kelli Ward; Steve Yarbrough;
Kimberly Yee; John Allen; Brenda Barton; Sonny Borrelli; Paul Boyer; Karen
Fann; Eddie Farnsworth; Thomas Forese; David Gowan; Rick Gray; John
Kavanagh; Adam Kwasman; Debbie Lesko; David Livingston; Phil Lovas;
J.D. Mesnard; Darin Mitchell; Steve Montenegro; Justin Olson; Warren
Petersen; Justin Pierce; Carl Seel; Steve Smith; David Stevens; Bob Thorpe;
Kelly Townsend; Michelle Ugenti; Jeanette Dubreil; Katie Miller; Tom
Jenney
Douglas C. Northup, Timothy Berg (argued), Patrick Irvine, and Carrie
Pixler Ryerson, Fennemore Craig, P.C., Phoenix, Attorneys for Governor
Janice K. Brewer and Director Thomas J. Betlach; and Joseph Sciarrotta, Jr.,
Office of Governor Janice K. Brewer, Phoenix, Co-Counsel for Governor
Janice K. Brewer
Timothy M. Hogan and Joy Herr-Cardillo, Arizona Center for Law in the
Public Interest, Phoenix; and Ellen Sue Katz, William E. Morris Institute for
Justice, Phoenix, Attorneys for Amici Curiae Arizona Center for Law in the
Public Interest and The William E. Morris Institute for Justice
Kory A. Langhofer and Thomas J. Basile, Brownstein Hyatt Farber Schreck,
LLP, Phoenix, Attorneys for Amici Curiae Arizona Hospital and Healthcare
Association, Abrazo Health Care, Banner Health, and Dignity Health
Joseph A. Kanefield and Brunn W. Roysden, III, Ballard Spahr LLP,
Phoenix, Attorneys for Amici Curiae Fife Symington, III, et al.
James S. Burling, Pacific Legal Foundation, Sacramento, CA, Attorneys for
Amicus Curiae Pacific Legal Foundation
2
BIGGS ET AL. v. HON. COOPER ET AL.
Opinion of the Court
Timothy A. LaSota, Tiffany & Bosco, P.A., Phoenix, Attorneys for Amicus
Curiae Arizona Free Enterprise Club
Carrie Ann Donnell, Sitren Legal, Phoenix, Attorneys for Amicus Curiae
Howard Jarvis Taxpayers Association
JUSTICE BERCH authored the opinion of the Court, in which CHIEF
JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, and JUSTICES
BRUTINEL and TIMMER joined.
JUSTICE BERCH, opinion of the Court:
¶1 We granted review to determine whether a group of
legislators who voted against House Bill (“HB”) 2010 has standing to
challenge whether it was passed in a constitutional manner. Because the
group had enough votes to have blocked the bill if passage required a
supermajority vote, the group has alleged an injury sufficient to confer
standing.
I. BACKGROUND
¶2 In the Fifty-First Arizona State Legislature, representatives
introduced HB 2010 to expand Arizona’s indigent healthcare program. HB
2010 includes an assessment on hospitals designed to help fund the
healthcare expansion. The Arizona Constitution requires that certain acts
that increase state revenues must pass the legislature by a supermajority
vote. Ariz. Const. art. 9, § 22(A). During debates over HB 2010, the question
3
BIGGS ET AL. v. HON. COOPER ET AL.
Opinion of the Court
arose whether this supermajority requirement applied to the bill, but the
legislature decided, by majority vote in each chamber, that it did not.1 The
legislature then passed HB 2010 by a simple majority vote, and the governor
signed it into law as A.R.S. § 36-2901.08.
¶3 Thirty-six legislators who voted against the bill—twenty-
seven representatives and nine senators—sued to enjoin enforcement of
Arizona’s healthcare expansion. They claim that by failing to satisfy the
supermajority requirement, the legislature violated the constitution and
diminished the effectiveness of their votes.
¶4 The superior court dismissed the plaintiff legislators’ claims
for lack of standing. The court held, first, that Article 9, Section 22(D) of the
Arizona Constitution gives the legislature discretion to determine whether
the supermajority requirement applies. Second, citing Bennett v. Napolitano,
206 Ariz. 520, 81 P.3d 311 (2003), the court determined that the plaintiff
legislators lacked standing because they did not suffer an “injury” when
the majority of the legislature found the supermajority requirement
1 Article 9, Section 22(C)(2) excepts from the supermajority
requirement “[f]ees and assessments that are authorized by statute, but are
not prescribed by formula, amount or limit, and are set by a state officer or
agency.” Whether HB 2010 falls within the exception or is instead subject
to the supermajority requirement is not now before us.
4
BIGGS ET AL. v. HON. COOPER ET AL.
Opinion of the Court
inapplicable.
¶5 The court of appeals reversed. Biggs v. Cooper, 234 Ariz. 515,
323 P.3d 1166 (App. 2014). It held that whether the supermajority
requirement applies depends on the constitution’s commands, not on the
legislature’s discretion, and consequently the issue is subject to judicial
review. Id. at 520 ¶ 9, 323 P.3d at 1171. The court then held that if the
plaintiffs are correct on the merits, their votes on HB 2010 were nullified,
and therefore they have standing to challenge the resulting law. Id. at 521
¶ 15, 323 P.3d at 1172 (citing Coleman v. Miller, 307 U.S. 433, 438 (1939);
Bennett, 206 Ariz. at 526 ¶ 28, 81 P.3d at 318).
¶6 We granted review because the petition raises an unresolved
question concerning standing to challenge legislative compliance with the
constitution’s requirement that certain laws be enacted by a supermajority.
This legal issue is of statewide importance.
II. DISCUSSION
¶7 The Arizona Constitution requires that certain revenue-
generating bills be passed by a “vote of two-thirds of the members of each
house of the legislature.” Ariz. Const. art. 9, § 22(A). The parties do not
dispute that the legislature may determine whether a supermajority vote is
5
BIGGS ET AL. v. HON. COOPER ET AL.
Opinion of the Court
required during the legislative process. See id. art. 4, pt. 2, § 8 (allowing
“[e]ach house . . . [to] determine its own rules of procedure”). The parties
further agree that the legislature may not, by majority vote, be the final
arbiter of whether the constitutional provision requiring a supermajority
vote applies. We agree with the court of appeals that giving the legislature
exclusive authority to decide whether Section 22 applies to a particular bill
would “eliminate[] Article 9, Section 22’s ability to act as a limiting
provision on the legislature’s power.” Biggs, 234 Ariz. at 520 ¶ 9, 323 P.3d
at 1171 (citing Cave Creek Unified Sch. Dist. v. Ducey, 233 Ariz. 1, 5 ¶ 13, 308
P.3d 1152, 1156 (2013); Earhart v. Frohmiller, 65 Ariz. 221, 224, 178 P.2d 436,
437 (1947)).
¶8 In this case, we decide only whether, once the bill has become
law, a group of plaintiff legislators sufficient to have blocked its passage
has standing to challenge the law’s enactment by only a majority vote. In
Arizona, standing is a prudential consideration rather than a jurisdictional
one. Dobson v. State, 233 Ariz. 119, 122 ¶ 9, 309 P.3d 1289, 1292 (2013) (noting
that Article III courts are jurisdictionally limited to “cases or controversies,”
while Arizona courts are not similarly constrained). To have standing, “a
plaintiff must allege a distinct and palpable injury.” Sears v. Hull, 192 Ariz.
6
 BIGGS ET AL. v. HON. COOPER ET AL.
Opinion of the Court
65, 69 ¶ 16, 961 P.2d 1013, 1017 (1998).
¶9 In Bennett, we noted our hesitance to intervene in disputes
involving the legislative and executive branches of government. 206 Ariz.
at 525 ¶ 20, 81 P.3d at 316. There, we held that individual legislators lack
standing because they do not suffer an “injury to a private right or to
themselves personally” when they simply complain that their votes were
counted, but the effect was nullified by the governor’s acts. Id. at 526–27
¶¶ 26–29, 81 P.3d at 317–18. On the other hand, we have found that the
legislature as a body suffers a direct institutional injury, and so has standing
to sue, when an invalid gubernatorial veto improperly overrides a validly
enacted law. See Forty-Seventh Legislature v. Napolitano, 213 Ariz. 482, 487
¶ 15, 143 P.3d 1023, 1028 (2006) (distinguishing Bennett, 206 Ariz. at 527 ¶ 29,
81 P.3d at 318).
¶10 In Forty-Seventh Legislature, we relied on Coleman in reasoning
that if a majority bloc of legislators has sufficient votes to defeat a bill, that
bloc may have standing to assert the institutional injury. Forty-Seventh
Legislature, 213 Ariz. at 486–87 ¶¶ 14–15 n.4, 143 P.3d at 1027–28 n.4 (citing
Bennett, 206 Ariz. at 525 ¶ 22, 81 P.3d at 316, for the proposition that Arizona
courts may find federal case law “instructive”). In Coleman, twenty Kansas
7
BIGGS ET AL. v. HON. COOPER ET AL.
Opinion of the Court
state senators voted to ratify an amendment to the United States
Constitution, and twenty voted against ratification. 307 U.S. at 436. To
break the tie, the lieutenant governor, an executive branch officer, voted in
favor of ratification. Id. Twenty-one senators and three members of the
Kansas House of Representatives then brought suit challenging the
lieutenant governor’s right to cast the deciding vote. Id.
¶11 The United States Supreme Court observed that, if the twenty
plaintiff-senators were correct in their allegations, their “votes against
ratification ha[d] been overridden and virtually held for naught” because,
but for the lieutenant governor overstepping his authority, their votes
would have been sufficient to defeat ratification. Id. at 438. The Court
therefore concluded that the senators had alleged a justiciable injury to their
“interest in maintaining the effectiveness of their votes.” Id.; see also Raines
v. Byrd, 521 U.S. 811, 823–24 (1997) (distinguishing Coleman, observing that
“legislators whose votes would have been sufficient to defeat . . . a specific
legislative Act have standing to sue . . . on the ground that their votes have
been completely nullified”).
¶12 Although Coleman involved a ratification requiring a majority
vote, the Court’s reasoning informs this case involving a lawsuit brought
8
BIGGS ET AL. v. HON. COOPER ET AL.
Opinion of the Court
by a minority of the legislature. For if a supermajority requirement applies,
the vote of the bloc of plaintiff legislators (or at least the plaintiff
representatives) here, as in Coleman, would have sufficed to prevent
passage of the law. Thus, this bloc of legislators suffered an institutional
injury if its votes would have sufficed to defeat the law, but the law was
nonetheless enacted.
¶13 The votes of the plaintiff representatives here would have
sufficed to defeat enactment, if the supermajority requirement applies. The
Arizona House of Representatives contains sixty members. The twenty-
seven representatives’ negative votes equal more than the one-third plus
one vote necessary to have defeated HB 2010 in the House if the bill requires
a two-thirds vote for enactment. Thus, passage of the bill by a simple
majority vote effectively negated the plaintiff representatives’ votes and
they, as a bloc, have therefore alleged a “particularized” injury sufficient to
confer standing.2 See Coleman, 307 U.S. at 438; Forty-Seventh Legislature, 213
2 Because the plaintiff representatives, as a bloc, alleged an injury
sufficient to confer standing, the superior court erred in dismissing the
action in its entirety, even if it correctly dismissed the action as to other
plaintiffs. No party has requested dismissal of the plaintiff senators from
this action if only the plaintiff representatives have standing. That issue
remains open. Cf. Coleman, 307 U.S. at 436 (granting standing to twenty
9
BIGGS ET AL. v. HON. COOPER ET AL.
Opinion of the Court
Ariz. at 486–87 ¶¶ 14–15, 143 P.3d at 1027–28.
¶14 The superior court nonetheless concluded that the plaintiff
legislators’ claims were more like the allegations of the individual
legislators in Bennett, which were held to be insufficient to support
standing, than those of the twenty senators in Coleman. We disagree. In
Bennett, four legislative leaders claimed that the governor
unconstitutionally vetoed eleven items in the 2004 Budget and three related
Omnibus Reconciliation Bills. Bennett, 206 Ariz. at 522 ¶¶ 1, 3, 81 P.3d at
313. This Court found that the individual plaintiffs had not shown either
specific injury to themselves or nullification of their votes. Id. at 526–27
¶ 28, 81 P.3d at 317–18. We distinguished Coleman by noting that “the
twenty-one senators in Coleman constituted a majority of the Kansas
Senate” whose votes were nullified by the interference with the legislative
process. Id. at 527 ¶ 29, 81 P.3d at 318. That distinction between Coleman
and Bennett applies to the plaintiff legislators here, bringing them within
Coleman’s exception and conferring standing.
¶15 Throughout this case, plaintiff representatives have asserted
senators who voted against ratification even though the plaintiff group
consisted of twenty-one senators and three representatives).
10
BIGGS ET AL. v. HON. COOPER ET AL.
Opinion of the Court
individual rather than institutional standing. In doing so, however, they
also have cited Coleman and alleged that they had sufficient votes to have
defeated HB 2010, if a supermajority vote was required for its passage. As
set forth, plaintiff representatives’ allegations sufficiently state a claim of
particularized injury to the bloc as a whole, though not to each plaintiff
legislator individually. This injury to the bloc thus does not confer on the
plaintiff legislators individual standing to sue. Cf. Forty-Seventh Legislature,
213 Ariz. at 487 ¶ 16 n.5, 143 P.3d at 1028 n.5 (denying individual standing
to the Senate President and House Speaker). Their standing flows from
their power, as a group, to have defeated the bill, if a supermajority was
required for passage.
¶16 The Governor and Director observe that in other cases
involving lawsuits by legislators, we have not found standing for legislators
unless they have obtained the legislature’s approval to sue. Compare Forty-
Seventh Legislature, 213 Ariz. at 486–87 ¶¶ 14–15, 143 P.3d at 1027–28
(standing found when the entire legislature sued to challenge line-item
veto), with Bennett, 206 Ariz. at 526–27 ¶¶ 28–29, 81 P.3d at 317–18 (no
standing in lawsuit by four legislators to challenge the governor’s line-item
veto). But when, as here, a minority of the legislature sufficient to prevent
11
BIGGS ET AL. v. HON. COOPER ET AL.
Opinion of the Court
passage of a bill challenges whether the bill was passed in a constitutional
manner, that minority may have standing to present its case without first
receiving legislative approval or joining the entire legislature in the action.
See Forty-Seventh Legislature, 213 Ariz. at 486–87 ¶¶ 14–15, 143 P.3d at 1027–
28 (citing Coleman, 307 U.S. at 436, 438); Bennett, 206 Ariz. at 527 ¶ 29, 81
P.3d at 318.
¶17 The Governor and Director argue that the plaintiff legislators
had other remedies available to them, such as attempting to repeal the law
or seeking a referendum on it. But the plaintiff legislators need not exhaust
all alternative political remedies before filing suit. See Forty-Seventh
Legislature, 213 Ariz. at 487 ¶ 17, 143 P.3d at 1028 (failure to exercise political
remedies is a “prudential concern” that weighs in favor of denying
standing, but does not require it). If a majority of legislators violates the
constitution and thereby injures a minority sufficient to have blocked
passage of a bill, we cannot require that minority to pursue the virtually
unattainable remedy of overtaking the majority to repeal the law.
¶18 The Governor and Director also encourage us to deny
standing because the hospitals subject to the law are more appropriate
parties to bring this challenge. The plaintiff legislators, on the other hand,
12
BIGGS ET AL. v. HON. COOPER ET AL.
Opinion of the Court
argue that the hospitals likely will never challenge the law because they
supported its passage and will benefit from it. While the prospect that an
issue may otherwise evade review might weigh in favor of granting
standing in some cases, see Sears, 192 Ariz. at 71–72 ¶ 28 n.9, 961 P.2d at
1019–20 n.9, because we hold that the plaintiff representatives have
standing to challenge the law, we need not consider the effect of other
potential plaintiffs who might bring their own challenges.
¶19 Because the votes of the bloc of plaintiff legislators here
would have sufficed to defeat HB 2010 if a supermajority was required for
enactment, the group has alleged that its members’ votes were effectively
nullified. We therefore hold that the superior court erred in dismissing this
action for lack of standing by the plaintiff representatives to challenge the
constitutional validity of the passage of A.R.S. § 36-2901.08.
¶20 Plaintiff legislators have requested an award of attorneys’
fees. Because there has been no determination on the merits, we deny an
award without prejudice to plaintiff legislators’ seeking an award from the
superior court should they ultimately prevail in this lawsuit.
III. CONCLUSION
¶21 We approve in part the result reached by the court of appeals
13
BIGGS ET AL. v. HON. COOPER ET AL.
Opinion of the Court
but vacate paragraphs 15 and 16 of its opinion, reverse the superior court’s
order insofar as it concerns standing by the plaintiff legislators, and remand
this case to the superior court for proceedings consistent with this opinion.
14