Biggs v. Cooper

Decision Date31 December 2014
Docket NumberNo. CV–14–0132–PR.,CV–14–0132–PR.
Citation236 Ariz. 415,703 Ariz. Adv. Rep. 35,341 P.3d 457
PartiesAndy 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.
CourtArizona Supreme Court

Clint Bolick, Kurt M. Altman, and Christina Sandefur (argued), Scharf–Norton Center for Constitutional Litigation at the Goldwater Institute, 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, Phoenix.

Douglas C. Northup, Timothy Berg (argued), Patrick Irvine, and Carrie Pixler Ryerson, Fennemore Craig, P.C., Attorneys for Governor Janice K. Brewer and Director Thomas J. Betlach; and Joseph Sciarrotta, Jr., Office of Governor Janice K. Brewer, Phoenix, CoCounsel for Governor Janice K. Brewer.

Timothy M. Hogan and Joy Herr–Cardillo, Arizona Center for Law in the Public Interest; 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.

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.

Opinion

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 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 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 ified, 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, 59 S.Ct. 972, 83 L.Ed. 1385 (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 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. 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 ified 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 state senators voted to ratify an amendment to the United States Constitution, and twenty voted against ratification. 307 U.S. at 436, 59 S.Ct. 972. 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, ...

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