PHOENIX — State lawmakers can’t ignore open meeting laws based on their claims that the law does not apply to them, the Arizona Court of Appeals ruled this week.
In a split decision Tuesday, the three-judge panel rejected arguments by attorneys for the legislature that they get to set their own rules. Appellate Judge Jennifer Campbell, writing for the majority, said there is no evidence that when lawmakers approved the statutes that they ever intended to exempt themselves.
Potentially more significant, Campbell tossed aside claims that the constitutional provisions for separation of powers among the three branches of government precludes courts from deciding whether what the legislature is doing is legal.
“By enacting statutes 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 either House Speaker Rusty Bowers, R-Mesa, or Senate President Karen Fann, R-Prescott.
The 2020 lawsuit by a coalition of rights groups came after the organizations charged that there were 26 Republican lawmakers — a quorum of at least five legislative committees — attending the annual conference of the American Legislative Exchange Council. That group, funded largely by corporate interests, serves as a clearinghouse of sorts for proposed changes in state laws across the nation, changes that can wind up being formally adopted by the legislature here.
It is that process, the lawsuit states, which shuts the public out of the process at the earliest stages of amendments to state law. More to the point, the fact that there is a quorum of a committee present means that the first action on the legislation effectively occurs behind closed doors.
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, even if there are enough people who then could formally approve a change in state law once they got back to the Capitol. Mikitish said that’s not for courts to decide.
Campbell, however, said these are precisely the issues that are within the purview of the judiciary.
She did acknowledge an argument by lawmakers that there is an exception to the open meeting laws for a “political caucus.”
The judge said, however, that is limited to things like considering party policy with respect to a particular legislative issue. More to the point, she said that the allegations by challengers were charging not that this was an illegal caucus to discuss policy but that the legislators “met and collaborated in secret with scores of lawmakers from other states and hundreds of ‘corporate lobbyists’ to draft model bills.”
Nor was Campbell impressed by arguments by lawmakers that they did not take any “legal action” during the ALEC meeting.
She pointed out 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.”
What makes that important, Campbell said, is that the challengers cited what they said is 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 historic 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. But 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 that isn’t correct, 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.
And Jamil Naser of the Arizona Palestine Solidarity Alliance complained about ALEC’s role in crafting what became a 2016 state law which sought to deny public contracts to firms that refused to avow they would not boycott Israel or companies that do business there. That law was later struck down by a federal judge though legislators subsequently adopted a slightly different version that has yet to be challenged.
Other complaints centered around what they said is 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.” And she noted that the 2020 ALEC meeting was just convening when the complaint was filed, and the challengers sought to enjoin attendance by all those lawmakers.
“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. And that, she said, means the legislature cannot have the case tossed, at least not at this time.
Appellate Judge Samuel Thumma dissented, saying he accepted the arguments that the attendance by the GOP lawmakers at the ALEC meeting fits within the definition of — and exception for — a political caucus.
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