Brewer v. Burns

• Decision Date: 13 August 2009
• Docket Number: No. CV-09-0168-SA.,CV-09-0168-SA.
• Citation: 213 P.3d 671,222 Ariz. 234
• Parties: Janice K. BREWER, Governor of the State of Arizona, in her official capacity, Petitioner, v. Robert BURNS, individually and as President, Arizona State Senate; Kirk Adams, individually and as Speaker, Arizona House of Representatives; The Arizona State Senate; the Arizona House of Representatives; and Charmion Billington, individually and as Secretary of the Arizona State Senate, Respondents.
• Court: Arizona Supreme Court

213 P.3d 671

222 Ariz. 234

Janice K. BREWER, Governor of the State of Arizona, in her official capacity, Petitioner, v. Robert BURNS, individually and as President, Arizona State Senate; Kirk Adams, individually and as Speaker, Arizona House of Representatives; The Arizona State Senate; the Arizona House of Representatives; and Charmion Billington, individually and as Secretary of the Arizona State Senate, Respondents.

No. CV-09-0168-SA.

Supreme Court of Arizona, En Banc.

August 13, 2009.

Office of the Governor by Joseph A. Kanefield, General Counsel Vanessa Hickman, Deputy General Counsel, Phoenix, Attorneys for Janice K. Brewer.

Cantelme & Brown, P.L.C. By David J. Cantelme, D. Aaron Brown, Paul R. Neil, Samuel Saks, Phoenix, Attorneys for Robert Burns, Kirk Adams, the Arizona House of Representatives, the Arizona State Senate, and Charmion Billington.

OPINION

BALES, Justice.

¶ 1 Because Arizona's constitution directs that "[e]very measure when finally passed shall be presented to the governor for [her] approval or disapproval," art. 4, pt. 2, § 12, this Court ruled on June 23, 2009, that the Respondents (collectively, the "Legislature") cannot pass bills and then withhold them to prevent the Governor from exercising her power to approve or veto legislation. Given the unusual circumstances of this case, however, we also declined to order the Legislature to immediately present the Governor the budget bills at issue here. This opinion explains our earlier order.

I.

¶ 2 This litigation arises from a dispute between the Governor and the Legislature regarding the state budget for the 2010 fiscal year.

¶ 3 On June 4, 2009, the Arizona Senate passed, by a simple majority vote, several appropriations bills: Senate Bills 1027, 1028, 1029, 1031, 1035, 1036, 1145, 1187, 1188, and 1258 (collectively, the "Budget Bills"). After passage, the Senate President, Robert Burns, signed the engrossed version of the bills in open session and ordered the bills transmitted to the Arizona House of Representatives, which passed the bills that day. Upon signing the bills, Kirk Adams, Speaker of the House of Representatives, directed the Chief Clerk to return them to the Senate.

¶ 4 Governor Janice K. Brewer publicly announced her opposition to the Budget Bills and her intent to veto them at least in part. The Legislature, however, declined to present them to her. On June 15, 2009, the Governor delivered a letter to President Burns and Speaker Adams requesting that they present the Budget Bills to her by 5:00 p.m. that day. They responded that the bills would be presented during the legislative session, but it would be "premature" to transmit them before the Legislature and Governor had reached agreement on a budget.

¶ 5 The next day, the Governor filed a petition for special action asking this Court to order the Legislature to present the Budget Bills to her without further delay. After expedited briefing, this Court heard oral argument on June 23, 2009.

II.

¶ 6 Both the Legislature and the Governor candidly acknowledge that their disagreement over the timing of the presentment of the Budget Bills reflects an effort by each branch to enhance its position in ongoing budget negotiations. The enactment of a budget often involves political disagreement, bargaining, and compromise. Because this Court is reluctant to enter the arena of political disputes between the executive and legislative branches, we first consider whether the issue presented is proper for judicial resolution.

A. Jurisdiction

¶ 7 Article 6, Section 5(1) of the Arizona Constitution grants this Court original jurisdiction over "mandamus, injunction and other extraordinary writs to State officers." We exercise this jurisdiction through the special action procedure, but our decision to accept jurisdiction is "highly discretionary." Forty-Seventh Legislature v. Napolitano, 213 Ariz. 482, 485 ¶¶ 10-11, 143 P.3d 1023, 1026 (2006); Randolph v. Groscost, 195 Ariz. 423, 425 ¶ 6, 989 P.2d 751, 753 (1999).

¶ 8 This case warrants the exercise of our special action jurisdiction. The key issue is whether our constitution allows the Legislature to pass bills, but then refuse for political reasons to present them to the Governor for her veto or approval. We accepted jurisdiction because the two political branches have a good faith dispute over their respective powers in the lawmaking process and the issue is of first impression and statewide importance. See Forty-Seventh Legislature, 213 Ariz. at 485-86 ¶ 11, 143 P.3d at 1026-27; Randolph, 195 Ariz. at 425 ¶ 6, 989 P.2d at 753.

¶ 9 The Legislature argues that even if special action jurisdiction is appropriate, the Governor should have instead filed this action in the superior court because there are "intense fact questions." We disagree. The relevant facts are undisputed; the merits of this case turn on the meaning of a constitutional provision. In light of the parties involved, the issue, and the timing of this dispute in relation to the enactment of a budget, special action relief was properly sought from this Court. See League of Ariz. Cities & Towns v. Martin, 219 Ariz. 556, 558 ¶ 4, 201 P.3d 517, 519 (2009).

B. Standing and Ripeness

¶ 10 The Legislature also argues that the Governor lacks standing and the dispute is not ripe for judicial resolution.

¶ 11 Although "we are not constitutionally constrained to decline jurisdiction based on lack of standing," Sears v. Hull, 192 Ariz. 65, 71 ¶ 24, 961 P.2d 1013, 1019 (1998), "[c]oncern over standing is particularly acute" when this Court is asked, in effect, to referee disputes between the political branches. See Bennett v. Napolitano, 206 Ariz. 520, 525 ¶ 20, 81 P.3d 311, 316 (2003) ("Without the standing requirement, the judicial branch would be too easily coerced into resolving political disputes between the executive and legislative branches, an arena in which courts are naturally reluctant to intrude.").

¶ 12 To have standing, a party generally must allege a particularized injury that would be remediable by judicial decision. See id. at ¶¶ 18, 22. The Governor contends that she has standing because the Legislature's refusal to present her with finally passed bills violates the constitutionally established procedure for lawmaking and undermines her express authority to veto or approve bills. See Ariz. Const. art. 4, pt. 2, § 12; art. 5, § 7.

¶ 13 The Legislature, in contrast, argues that the Governor's constitutional power to veto or approve a bill is not triggered until it is presented to her, and therefore she cannot complain of any constitutional injury based on the Legislature's refusal to present the bills.

¶ 14 The Governor has the better argument on standing. If she is correct that the Legislature has violated the constitution by withholding finally passed bills from her review, then she has sustained a direct injury to her constitutional authority. Cf. Forty-Seventh Legislature, 213 Ariz. at 487 ¶ 15, 143 P.3d at 1028 (finding that Legislature had standing to challenge alleged unconstitutional exercise of line-item veto). The Legislature's standing arguments presume that the Legislature is correct on the merits, that is, that the Legislature can, at its discretion, withhold finally passed bills from the Governor and thus she has sustained no injury. Our standing analysis, however, looks to whether the petitioner has plausibly alleged particularized injury as a precondition to the Court's deciding the merits; defendants cannot defeat standing merely by assuming they will ultimately win.

¶ 15 The Legislature similarly argues that the Governor's lawsuit is not ripe because when this case was submitted for decision, the Legislature was still in session and the Governor is not entitled to the presentment of finally passed bills before the Legislature adjourns. The Legislature cites Campaign for Fiscal Equity, Inc. v. Marino, which held that because the New York Constitution implicitly requires the presentment of bills within a "reasonable time," the New York Legislature could not adjourn without transmitting bills it had passed. 87 N.Y.2d 235, 638 N.Y.S.2d 591, 661 N.E.2d 1372, 1374 (1995). The Legislature's argument here again goes more to the merits than to ripeness. The Governor argues that the constitution requires transmittal of a bill once it has finally been passed, even if the Legislature has not yet adjourned. If the Governor is correct in her interpretation of the constitution, she suffered a constitutional injury.

C. Justiciability

¶ 16 The Legislature finally argues that this case presents a nonjusticiable political question. Even if a case is within a court's subject matter jurisdiction and is timely brought by a party with standing, a court should abstain from judicial review of the merits if the issue is properly decided by one of the "political branches" of government. Kromko v. Ariz. Bd. of Regents, 216 Ariz. 190, 192-93 ¶¶ 11-12, 165 P.3d 168, 170-71 (2007).

¶ 17 The fact that a lawsuit involves a disagreement between the political branches does not necessarily mean that it presents a political question. See INS v. Chadha, 462 U.S. 919, 942-43, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983) (noting that "the presence of constitutional issues with significant political overtones does not automatically invoke the political question doctrine"); Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) (observing that doctrine concerns "political questions" rather than "political cases"). A controversy only presents a nonjusticiable political question if it involves "a textually demonstrable constitutional commitment of the issue to a coordinate political department" or lacks "judicially discoverable and manageable standards" for its resolution. Kromko, 216 Ariz. at 192 ¶ 11, 165 P.3d at 170 (internal quotation marks omitted); see also Forty-Seventh Legislature, 213 Ariz. at 485 ¶ 7, 143 P.3d at 1026.

¶ 18 The Legislature first...