PHOENIX — State lawmakers can’t ignore open meeting laws by claiming the laws don’t apply to them, the Arizona Court of Appeals ruled Tuesday.
In a split decision, the three-judge panel rejected the Legislature’s arguments that it gets to set its own rules. Appellate Judge Jennifer Campbell, writing for the majority, said there is no evidence that lawmakers ever intended to exempt themselves when they approved the laws.
Potentially more significantly, Campbell tossed aside claims the constitutional provisions for separation of powers among the three branches of government preclude courts from deciding whether the Legislature’s actions are legal.
“By enacting a statute that expressly imposes open-meeting requirements on itself, the legislature implicitly and necessarily acceded to judicial enforcement of those requirements,” she wrote, even if it did retain the authority to adopt other procedural rules.
There was no immediate response from House Speaker Russell Bowers, R-Mesa, and Senate President Karen Fann, R-Prescott.
The ruling came in a lawsuit filed in 2020 by a coalition of advocacy groups. Those organizations contended there were 26 Republican lawmakers from Arizona — a quorum of at least five legislative committees — attending an annual conference of the American Legislative Exchange Council. The council, known as ALEC, funded largely by corporate interests, serves as a clearinghouse of sorts for proposed changes in state laws across the nation.
That process shuts the public out of the process at the earliest stages of amendments to state law, the lawsuit said. Having a quorum of a committee present means the first action on the legislation effectively occurs behind closed doors, it said.
Maricopa County Superior Court Judge Joseph Mikitish tossed the case.
He concluded it is legally irrelevant even if there is a quorum of any given committee, or enough people who then could formally approve a change in state law once they got back to the Capitol in Phoenix. Mikitish said that’s not for courts to decide.
Campbell, however, said these are precisely the issues within purview of the judiciary.
She acknowledged an argument by lawmakers that there is an exception to the open meeting laws for a “political caucus.”
However, the judge said that is limited to things like considering party policy with respect to a particular legislative issue. Here, the challengers are saying the legislators “met and collaborated in secret with scores of lawmakers from other states and hundreds of ‘corporate lobbyists’ to draft model bills.”
Campbell wasn’t impressed by lawmakers’ arguments that they did not take any “legal action” during the ALEC meeting.
That phrase means not just a roll-call vote but any “deliberations by a majority of a public body concerning any matter that foreseeably could come to a vote by that body,” she said.
That’s important, Campbell said, because the challengers cited a history of what happens at ALEC meetings ending up being incorporated, verbatim, into legislation introduced and approved at the Arizona Capitol.
For example, Sandra Castro, an activist with the Puente Human Rights Movement, one of the groups involved in the lawsuit, said that SB 1070, the 2010 Arizona law aimed at illegal immigration, came directly from a draft crafted at an ALEC meeting.
Parts of that law have since been struck down by federal courts. There are provisions still intact, including a requirement for police, when reasonable, to check the immigration status of those they have stopped for any other reason.
An ALEC spokesman later told Capitol Media Services the challengers were incorrect, saying SB 1070 was already adopted in Arizona before it became part of the ALEC agenda as a model for other states. Anyway, he said, ALEC no longer is involved in immigration issues.
Other complaints included what the challengers said was ALEC-inspired legislation to increase criminal penalties and build more private prisons.
All that, Campbell said, entitles challengers to argue that it was “reasonably foreseeable that model bills drafted during the (ALEC) summit ... would be brought to a vote in the legislature.”
“We conclude that the (challengers) alleged sufficient facts from which a reasonable inference could be drawn that the legislators violated the open meeting law,” Campbell wrote.
Appellate Judge Samuel Thumma dissented, saying he accepted the arguments that attendance by the GOP lawmakers at the ALEC meeting fits within the definition of — and exception for — a political caucus.
