Puente v. Az State Legislature

                                 IN THE

    SUPREME COURT OF THE STATE OF ARIZONA

   PUENTE, AN ARIZONA NONPROFIT CORPORATION; MIJENTE SUPPORT
  COMMITTEE, AN ARIZONA NONPROFIT CORPORATION; JAMIL NASER, AN
INDIVIDUAL; JAMAAR WILLIAMS, AN INDIVIDUAL, AND JACINTA GONZALEZ,
                          AN INDIVIDUAL,
                        Plaintiffs/Appellants,

                                    v.

                      ARIZONA STATE LEGISLATURE,
                           Defendant/Appellee.


                          No. CV-22-0069-PR
                        Filed December 30, 2022


          Appeal from the Superior Court in Maricopa County
              The Honorable Joseph P. Mikitish, Judge
                        No. CV2019-014945

                              AFFIRMED


             Opinion of the Court of Appeals, Division One
                       

 (App. 2022)

                               VACATED



COUNSEL:

Angelo Guisado (argued), The Center for Constitutional Rights, New York,
NY; Stephen D. Benedetto and Heather Hamel, The People’s Law Firm PLC,
Phoenix, Attorneys for Puente, et al.

Kory Langhofer (argued), Thomas Basile, Statecraft, Phoenix, Attorneys for
Arizona State Legislature
               PUENTE ET AL. V. ARIZONA STATE LEGISLATURE
                          Opinion of the Court


VICE CHIEF JUSTICE TIMMER authored the Opinion of the Court, in
which JUSTICES LOPEZ, BEENE, MONTGOMERY, and KING joined.*




VICE CHIEF JUSTICE TIMMER, Opinion of the Court:

¶1           Arizona’s Open Meeting Law (“OML”) requires legislative
committees to conduct meetings publicly so “all persons so desiring shall
be permitted to attend and listen to the deliberations and proceedings” and
“legal action of public bodies [occurs only] during a public meeting.”
A.R.S. §§ 38-431(6), -431.01(A). The determinative issue before us is
whether the political question doctrine prohibits courts from adjudicating
complaints that legislative committees met in violation of the OML. We
hold that such complaints raise nonjusticiable political questions.

                             BACKGROUND

¶2            On December 4, 2019, nonprofit organizations and
individuals (collectively, “Puente”) filed a complaint against the Arizona
Legislature seeking declaratory and injunctive relief. Puente alleged that
twenty-six Republican legislators, who comprised quorums for five
legislative committees, were threatening to violate the OML by attending a
three-day summit in Scottsdale hosted by the American Legislative
Exchange Council (“ALEC”).

¶3             ALEC is a “nonpartisan, voluntary membership organization
of state legislators dedicated to the principles of limited government, free
markets and federalism.” About ALEC, ALEC, https://alec.org/about/
(last visited Dec. 22, 2022). According to Puente, ALEC summits draw
state legislators and private participants from the entire country and
assemble, in part, so attendees can discuss and draft “model bills” for
introduction in state legislatures. These sessions are closed to the general
public.




*
   Chief Justice Robert M. Brutinel and Justice Clint Bolick recused
themselves from this case.

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               PUENTE ET AL. V. ARIZONA STATE LEGISLATURE
                          Opinion of the Court

¶4            Puente claimed the Legislature would violate the OML if
legislative committee quorums attended the Scottsdale summit and secretly
discussed, proposed, or deliberated ALEC model bills in what Puente
claimed would be “legislative planning sessions.” Among other things,
Puente asked the superior court to declare that the legislators’ planned
attendance at the Scottsdale summit would violate the OML and to enjoin
legislative committee quorums from attending future ALEC summits
absent compliance with the OML.

¶5            The superior court granted the Legislature’s motion to
dismiss the complaint for failing to state a viable claim. See Ariz. R. Civ.
P. 12(b)(6). The court ruled that whether the Legislature complied with
the OML is a nonjusticiable political question. The court of appeals
disagreed, vacated the judgment, and remanded for further proceedings.
Puente v. Ariz. State Legislature, 

, 572–73 ¶ 1 (App. 2022). We
granted the Legislature’s petition for review because the case raises
important issues that are capable of repetition. We have jurisdiction
under article 6, section 5(3) of the Arizona Constitution.

                              DISCUSSION

             I. General Principles

¶6            We review the superior court’s judgment dismissing the
complaint de novo. See Coleman v. City of Mesa, 

, 355 ¶ 7
(2012). Likewise, we interpret the Arizona Constitution de novo. See
State v. Hansen, 

, 289 ¶ 6 (2007).

¶7             The political question doctrine provides that a dispute is a
nonjusticiable political question if 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.” Kromko v. Ariz. Bd. of Regents, 

, 192 ¶ 11 (2007) (quoting
Nixon v. United States, 

 (1993)). The doctrine stems from
our constitutional commitment to separation of powers and acknowledges
that some decisions are entrusted to other branches of government. See 

at 192–93 ¶ 12; see also Ariz. Const. art. 3.

¶8          Although the political question inquiry is sometimes framed
in the disjunctive, Kromko, 

 ¶ 11, the elements are
interdependent. See, e.g., Ariz. Indep. Redistricting Comm’n v. Brewer,

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                PUENTE ET AL. V. ARIZONA STATE LEGISLATURE
                           Opinion of the Court

, 351 ¶ 18 (2012); see also Forty-Seventh Legislature v. Napolitano,

, 485 ¶ 7 (2006) (phrasing the inquiry in the conjunctive).
“[T]he fact that the Constitution assigns a power to another branch only
begins the inquiry,” which continues with a court determining whether
judicially discoverable and manageable standards of review exist. Brewer,

 ¶ 17; see also Kromko, 

 ¶¶ 13–14. The lack
of such standards “may strengthen the conclusion that there is a textually
demonstrable commitment to a coordinate branch.” Kromko, 

 ¶ 14 (quoting Nixon, 506 U.S. at 228–29). Conversely, their existence
weakens the significance of a textually demonstrable commitment to
another branch. Brewer, 

 ¶ 18. The ultimate question is
whether the Constitution places scrutiny of an issue beyond judicial
authority. See Ariz. Const. art. 3 (dividing the powers of government into
the legislative, the executive, and the judicial departments and providing
that “no one of such departments shall exercise the powers properly
belonging to either of the others”); see also Nixon, 

 (White, J.,
concurring) (noting “the issue in the political question doctrine is not
whether the constitutional text commits exclusive responsibility for a
particular governmental function to one of the political branches” but
instead is “whether the Constitution has given one of the political branches
final responsibility for interpreting the scope and nature of such a power”).

¶9             It is worth noting that despite its suggestive name, the
political question doctrine is not triggered simply because a lawsuit
involves politically charged issues. Brewer, 

 ¶ 16 (“That a
lawsuit involves ‘constitutional issues with significant political overtones,’
however, ‘does not automatically invoke the political question doctrine.’”
(quoting INS v. Chadha, 

, 942–43 (1983))).               Courts are
responsible for resolving challenges to another branch’s constitutional
authority “[even when] the issues have political implications.”                

(quoting Zivotofsky v. Clinton, 

 (2012)); see also Baker v. Carr,

 (1962) (“The doctrine of which we treat is one of ‘political
questions,’ not one of ‘political cases.’ The courts cannot reject as ‘no law
suit’ a bona fide controversy as to whether some action denominated
‘political’ exceeds constitutional authority.”); Ariz. Sch. Bds. Ass’n v. State,

, 225 ¶ 21 (2022) (rejecting the argument that “only the
legislature may determine whether its bills satisfy constitutional
requirements”).




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               PUENTE ET AL. V. ARIZONA STATE LEGISLATURE
                          Opinion of the Court

              II.   Application

¶10          The parties do not dispute that the Arizona Constitution
textually commits to the legislative houses the authority to determine their
own internal procedures. The constitution provides, in relevant part, as
follows:

       Section 8. Each house, when assembled, shall choose its own
       officers, judge of the election and qualification of its own
       members, and determine its own rules of procedure.

       Section 9. The majority of the members of each house shall
       constitute a quorum to do business, but a smaller number may
       meet, adjourn from day to day, and compel the attendance of
       absent members, in such manner and under such penalties as each
       house may prescribe. Neither house shall adjourn for more than
       three days, nor to any place other than that in which it may be
       sitting, without the consent of the other.

Ariz. Const. art. 4, pt. 2, §§ 8–9 (emphasis added).

¶11           The Legislature argues the above-emphasized language
commits the formulation and enforcement of internal procedures
exclusively to each legislative house’s discretion, and judicially manageable
standards do not exist for a court to review the exercise of that discretion.
Puente characterizes these provisions as granting the legislative houses
only intra-branch authority to develop procedural rules, which does not
displace the judiciary’s authority to determine whether legislative conduct
violates external procedural constraints, like the OML. It points out that
the Legislature subjected itself to the OML, see §§ 38-431(6), -431.01(A), and
has not promulgated any inconsistent procedural rules. Because Puente
does not ask the superior court to interfere with the legislative houses’
rulemaking authority but seeks only to compel compliance with the OML,
Puente asserts its lawsuit is justiciable. See Puente, 252 Ariz. at 575 ¶ 15
(agreeing that because the Legislature “expressly impose[d] open-meeting
requirements on itself, [it] implicitly and necessarily acceded to judicial
enforcement of those requirements, even while it retained its authority
under the Constitution to adopt other procedural rules” (emphasis
omitted)).


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                 PUENTE ET AL. V. ARIZONA STATE LEGISLATURE
                            Opinion of the Court

¶12            For several reasons, we agree with the Legislature. First, the
constitutional commitment of authority for the legislative houses to
determine their own procedural rules necessarily means each house can
interpret, amend, enforce, or disregard those rules with almost limitless
impunity. See Hughes v. Speaker of the N.H. House of Representatives,

 (N.H. 2005); Des Moines Reg. & Trib. Co. v. Dwyer,

 (Iowa 1996). The courts are empowered to review
legislative rules or procedures to decide whether they “ignore
constitutional restraints[,] . . . violate fundamental rights, [or lack] a
reasonable relation between the mode or method of proceeding established
by the rule and the result which is sought to be attained.” United States v.
Smith, 

 (1932); see also Marbury v. Madison, 

, 176—78 (1803); Des Moines Reg., 

. Absent such
challenges, however, the judiciary cannot compel the legislature to follow
its own procedural rules, see Pirtle v. Legis. Council Comm. of N.M. Legislature,

, 596–97 (N.M. 2021); Abood v. League of Women Voters of Alaska,

 (Alaska 1987), even if the procedural rules are codified in
statute, see Hughes, 

.

¶13            Here, Puente does not assert the Legislature violated the
constitution, infringed individual rights by failing to comply with the OML,
or disguised a matter of substance as a procedural rule. Unlike many other
state constitutions, our constitution neither expressly nor impliedly
requires that legislative proceedings be open to the public. See Ariz. Const.
art. 4 (concerning the legislative department); Pirtle, 492 P.3d at 596–97
(adjudicating whether the state legislature’s decision to prohibit the public
from physically attending special session during pandemic violated the
New Mexico Constitution, which requires that “all sessions of each house
shall be public”). And the rights granted under the OML do not involve
individual rights but belong to the public generally. See Abood, 

 (noting that the right granted by Alaska’s open meeting law as it
applies to the legislature “is a right of the public generally” and does not
belong to any specific individual).

¶14           Second, the OML does not displace the legislative houses’
constitutional authority to establish their own procedures or disregard the
OML. That authority is absolute and continuous, meaning each successive
embodiment of a house is empowered to establish its own procedures. See
Ariz. Const. art. 4, pt. 2, § 8; see also United States v. Ballin, 

 (1892);
Hughes, 

. As a result, one legislature cannot bind future
legislative houses to procedural rules. See Hughes, 

. And

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               PUENTE ET AL. V. ARIZONA STATE LEGISLATURE
                          Opinion of the Court

the legislature cannot cede to the judiciary, through the OML or otherwise,
responsibility to enforce legislative procedural rules, absent infringement
of the state or federal constitution. See Jaber v. United States, 

 (D.C. Cir. 2017) (noting that U.S. presidential administrations “may
have laid out the legal rules they understood to govern their conduct, but
they did not concede authority to the Judiciary to enforce those rules. Nor
could they.”).

¶15            As Puente acknowledged at oral argument, the OML, as
applicable to the Legislature, constitutes a procedural rule, and we agree.
See Hughes, 

 (concluding New Hampshire’s open meeting
law, as applicable to the legislature, is procedural “because this legislative
enactment ‘merely establishes a rule of procedure concerning how the
legislature has decided to conduct its business,’ and the legislature has sole
authority to adopt such rules of procedure” (citation omitted)); Abood,

 (to same effect concerning Alaska’s open meeting law). As
such, although the Legislature should follow its own procedural rules, we
cannot adjudicate any violations absent the previously described
challenges. See supra ¶ 12; Abood, 

 (“Of course, having
made the [legislative procedural] rule, it should be followed [by the
legislature], but a failure to follow it is not the subject matter of judicial
inquiry.”).

¶16            Third, adjudicating the Legislature’s compliance with the
OML would be no different than adjudicating the houses’ adherence to
their own procedural rules—an issue Puente agrees is nonjusticiable absent
limited challenges. See supra ¶ 12. The legislative houses in 2019
exercised their constitutional authority by adopting procedural rules for
committees. See Ariz. H.R., R. 9(C)(1), 54th Leg. (2019–2020) (providing,
with exception, that “all committee meetings shall be open to the other
members of the Legislature, the press and public so long as proper decorum
is maintained”); Ariz. S., R. 7(B)(3), 54th Leg. (2019–2020) (“All committee
meetings shall be open to the other members of the Legislature, the press
and public so long as the proper decorum is maintained.”). As explained,
the legislative houses are free to disregard procedural rules, and it generally
falls to them—not the courts—to enforce any violations by members.
See Abood, 

. It makes no difference that the legislative rules
substantially mirrored the OML. See 

.




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               PUENTE ET AL. V. ARIZONA STATE LEGISLATURE
                          Opinion of the Court

¶17            Fourth, we lack judicially discoverable and manageable
standards to decide whether the Legislature properly disregarded its own
procedural rules, including those embodied in the OML, and permitted
quorums of legislative committees to meet privately. The constitution
authorizes each house to “determine its own rules of procedure” and
permit fewer than a majority of members to meet and “do business” “in
such manner and under such penalties as each house may prescribe.” Ariz.
Const. art. 4, pt. 2, §§ 8–9. Significantly, the constitution does not require
the legislative houses to adopt particular procedures or adhere to
standards, which would enable courts to determine whether the Legislature
acted properly in exercising its authority. For example, the constitution
does not require that legislative procedural rules or directives be reasonable
or applicable only when the legislature is in session. In short, the judiciary
lacks standards for assessing the legislative houses’ exercise of their
constitutional authority to permit members to disregard procedural rules,
including the OML. This lack of standards strengthens the conclusion that
the constitution commits to the legislative houses exclusive authority to
decide whether its members must adhere to the OML. See Kromko,

 ¶ 14.

¶18           Our decision aligns with other courts that have decided that
whether a legislature has violated a state open meetings law is
nonjusticiable. See, e.g., Des Moines Reg., 

 (“It is entirely
the prerogative of the legislature, however, to make, interpret, and enforce
its own procedural rules, and the judiciary cannot compel the legislature to
act in accordance with its own procedural rules so long as constitutional
questions are not implicated.”); Hughes, 876 A.2d at 744–46 (collecting
cases); Abood, 743 P.2d at 338–39 (collecting cases).

¶19           In sum, although the OML applies to the Legislature, whether
the Legislature violated the OML is nonjusticiable. In light of this decision,
we need not address the remaining issues raised by the petition.

                              CONCLUSION

¶20          For the foregoing reasons, we vacate the court of appeals’
opinion and affirm the superior court’s judgment.




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