State lawmakers are free to ignore laws they approved requiring public access to their meetings and there’s nothing that courts can do about it, the Arizona Supreme Court ruled Friday.
In a unanimous ruling, the justices acknowledged that legislators applied the state’s Open Meeting Law to themselves. This law requires that all legislative committees conduct meetings publicly so “all persons so desiring shall be permitted to attend and listen to the deliberations and proceedings.”
In fact, Justice Ann Scott Timmer said lawmakers also approved rules that are substantially similar.
But Timmer said the Arizona Constitution also gives the House and Senate the power to determine their own procedural rules. And that, she said, “necessarily means each house can interpret, amend, enforce or disregard those rules with almost limitless impunity.”
And that, Timmer said, also means they are free to ignore the statute that they applied to themselves without fear that some individual or organization will sue to force them to follow it.
“It generally falls to them (the legislative houses) – not the courts – to enforce any violations by members,” she wrote. “It makes no difference that the legislative rules substantially mirrored the Open Meeting Law.”
And there’s something else in the ruling,
“Our constitution neither expressly nor impliedly requires that legislative proceedings be open to the public,” Timmer wrote. And that conclusion could give lawmakers, should they desire, the go-ahead to close off other proceedings that, until now, have been open to the public.
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.
A trial judge tossed out the case saying what lawmakers do is not for the courts to decide.
But in a split ruling earlier this year, the state Court of Appeals rejected the idea 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 a statute that expressly imposes open-meeting requirements on itself, the legislature implicitly and necessarily acceded to judicial enforcement of those requirements,” wrote Judge Jennifer Campbell for the majority of the appellate court.
The high court, however, said that ruling was incorrect.
Timmer acknowledged that courts can review legislative rules or procedures to decide whether they ignore constitutional rights or violate fundamental rights. Judicial intervention also is appropriate, she said, when there is no “reasonable relation” between the procedures established by the rule and the result that rule is supposed to attain.
“Absent such challenges, however, the judiciary cannot compel the legislature to follow its own procedural rules, even if the procedural rules are codified in statute,” she said.
“Although the legislature should follow its own procedural rules, we cannot adjudicate any violations absent the previously described challenges.”
Timmer also said there’s nothing in the constitution requiring the House or Senate to adopt any particular procedure or adhere to certain standards. And that, she said, means there is no guidepost for the courts to use to determine whether the legislature is acting within its authority.
The bottom line, said Timmer, is those with complaints about being denied access to legislative meetings can’t count on courts to intercede.
In refusing to tell lawmakers what they can and cannot do, the justices sidestepped the specific complaints in the lawsuit that there 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.
There was no immediate response from the attorneys who filed the lawsuit.