Fann v. Kemp

Citation78 Arizona Cases Digest 11,515 P.3d 1275
Decision Date31 August 2022
Docket NumberCV-22-0018-PR
Parties Karen FANN, in her official capacity as President of the Arizona Senate ; Warren Petersen, in his official capacity as Chairman of the Senate Judiciary Committee; The Arizona Senate, a house of the Arizona Legislature, Petitioners, v. The Honorable Michael KEMP, Judge of the Superior Court of the State of Arizona, IN AND FOR the COUNTY OF MARICOPA, Respondent Judge, American Oversight, Real Party in Interest
CourtArizona Supreme Court

Kory Langhofer (argued), Thomas Basile, Statecraft PLLC, Phoenix, Attorneys for Karen Fann, Warren Petersen, and Arizona Senate

Keith Beauchamp, Roopali H. Desai, D. Andrew Gaona (argued), Coppersmith Brockelman PLC, Phoenix, Attorneys for American Oversight

David J. Bodney, Craig C. Hoffman, Matthew E. Kelley, Ballard Spahr LLP, Phoenix, Attorneys for Amici Curiae Phoenix Newspapers, Inc. and Kathy Tulumello


JUSTICE LOPEZ, Opinion of the Court:

¶1 Today we consider the scope and application of legislative privilege under the Arizona Constitution and the common law. See Ariz. Const. art. 4, pt. 2, § 7. Legislative privilege—as set forth in Gravel v. United States , 408 U.S. 606, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972), and Arizona Independent Redistricting Commission v. Fields , 206 Ariz. 130, 75 P.3d 1088 (App. 2003) (the " Gravel / Fields framework")—exists to protect the integrity and functioning of the legislature. Thus, although the privilege protects communications that are an integral part of the deliberative and communicative processes relating to proposed legislation, the privilege does not require pending legislation or affirmative evidence of legislative impairment. Instead, the privilege also applies to legislative communications concerning "other matters placed within the jurisdiction of the legislature," Fields , 206 Ariz. at 137 ¶ 18, 75 P.3d at 1095 ; accord Gravel , 408 U.S. at 625, 92 S.Ct. 2614, provided they are not administrative or political in nature. Finally, we provide substantive and procedural guidance to aid the trial court in evaluating the Arizona Senate's privilege log and determining the discoverability of assertedly privileged documents and communications.


¶2 Following the November 2020 election, Senate President Karen Fann, Senate Judiciary Committee Chairman Warren Petersen, and the Arizona Senate (collectively, the "Senate") contracted with Cyber Ninjas to conduct an audit of the nearly 2.1 million ballots cast in Maricopa County (the "Audit"). The statement of work specified that the Audit would "attempt to validate every area of the voting process to ensure the integrity of the vote," including "auditing the registration and votes cast, the vote counts and tallies, the electronic voting system, as well as auditing the reported results." At the conclusion of the Audit, Cyber Ninjas was to draft a report detailing its findings, including any issues with voting tabulation or software, and improperly transmitted result tallies. The report was also to include "[r]ecommendations on how to prevent any detected weaknesses from being a problem in future elections (if applicable)." Cyber Ninjas delivered the report to the Senate in September 2021. The Senate subsequently released the report to the public and conducted a public hearing in the Senate chamber outlining the report's findings and conclusions.

¶3 American Oversight, a nonprofit organization that advocates for government transparency, submitted requests to the Senate and Cyber Ninjas to produce public records relating to the Audit. Upon the Senate's refusal to produce most of the requested records, American Oversight filed a complaint under Arizona's public records law, A.R.S. § 39-121, to compel disclosure of the documents, including those in the possession or custody of Cyber Ninjas and its subcontractors. The Senate moved to dismiss the complaint, asserting among other things that legislative immunity barred the suit. The trial court rejected the Senate's immunity claim and ordered it to immediately disclose all documents and communications concerning the Audit's planning and execution and any documents with a substantial nexus to the Audit. The Senate sought special action relief in the court of appeals, which accepted jurisdiction but denied relief, reasoning that the legislature does not have a blanket exemption from disclosure under the public records law. Fann v. Kemp ex rel. Cnty. of Maricopa (Fann I ), No. 1 CA-SA 21-0141, 2021 WL 3674157, at *1 ¶ 1, *3 ¶ 16 (Ariz. App. Aug. 19, 2021) (mem. decision).

¶4 After the court of appeals held that the requested communications were public records subject to disclosure requests, the Senate subsequently disclosed about 22,000 records. However, the Senate also submitted to the trial court a privilege log listing 422 withheld and 272 redacted communications, claiming these communications were covered by legislative privilege, and withheld another 402 records based, in part, on the same grounds. The Senate's privilege log indicated that some of the communications were withheld because those e-mails contained "internal legislative discussions regarding [the] [A]udit" and legislative proposals and some text messages referred to communications regarding its legislative investigation, the Audit process, and legislative proposals. American Oversight moved to compel the Senate to produce the withheld records.

¶5 The trial court held in abeyance a decision on whether an in camera inspection was necessary, declined to address the sufficiency of the Senate's privilege log, and rejected the Senate's legislative privilege claim. The court concluded that, even if legislative privilege applied, the Senate effectively waived the privilege by releasing public statements about the Audit, publishing Cyber Ninja's comprehensive report, and conducting a public hearing. The Senate sought special action relief in the court of appeals, which held that the Senate did not meet its burden of showing that all communications in the privilege log were protected by legislative privilege, but that the trial court erred in finding a global waiver of the privilege. Fann v. Kemp ex rel. Cnty. of Maricopa (Fann II ), 252 Ariz. 508, 511 ¶ 2, 505 P.3d 301, 304 (App. 2022). The court of appeals ordered the Senate to disclose all records listed in the privilege log that did not fall within the court's interpretation of the Gravel / Fields framework. When the Senate asserted that the privilege shielded certain communications from discovery, the court directed the Senate to submit to an in camera inspection by the trial court to determine whether the records were privileged or must be disclosed under the public records law. The Senate then sought this Court's review.

¶6 We granted review to consider the scope and application of legislative privilege, a recurring issue of statewide importance. We have jurisdiction under article 6, section 5(3) of the Arizona Constitution.


¶7 The court of appeals held that the Senate failed to meet its burden of showing that the legislative privilege protected its Audit communications from disclosure because (1) it did not demonstrate a connection between the Audit and proposed or pending legislation, Fann II , 252 Ariz. at 517 ¶ 30, 505 P.3d at 310 ; (2) the Audit was more administrative or political than legislative in nature, id. at 516–17 ¶¶ 26–27, 505 P.3d at 309–10 ; and (3) the Senate failed to demonstrate impairment of the legislative process, id. at 518 ¶ 32, 505 P.3d at 311. We disagree and, after setting forth the general principles of privileges and the contours of legislative privilege, we address, in turn, each of the court of appeals’ conclusions and the substantive and procedural issues concerning the Senate's privilege log.


¶8 The party asserting a privilege has the burden of proving each of its elements.

Steiger v. Superior Court , 112 Ariz. 1, 3, 536 P.2d 689, 691 (1975). The existence of an evidentiary privilege is a question of law which we review de novo, Fields , 206 Ariz. at 136 ¶ 14, 75 P.3d at 1094 (citing Twin City Fire Ins. v. Burke , 204 Ariz. 251, 254 ¶ 10, 63 P.3d 282, 285 (2003) ), and we also review de novo whether a privilege applies, see State ex rel. Adel v. Adleman , 252 Ariz. 356, 360 ¶ 10, 503 P.3d 120, 124 (2022).

¶9 It is a long-standing principle that " ‘the public ... has a right to every man's evidence,’ except for those persons protected by a constitutional, common-law, or statutory privilege." Branzburg v. Hayes , 408 U.S. 665, 688, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972) (quoting United States v. Bryan , 339 U.S. 323, 331, 70 S.Ct. 724, 94 L.Ed. 884 (1950) ); see also § 39-121 (Arizona's public records law)1 ; A.R.S. § 38-431.01 (Arizona's open meeting law). Although the various privileges "are designed to protect weighty and legitimate competing interests," United States v. Nixon , 418 U.S. 683, 709, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974), we narrowly construe privileges because they are "in derogation of the search for truth," id. at 710, 94 S.Ct. 3090 ; see also R.S. v. Thompson ex rel. Cnty. of Maricopa , 251 Ariz. 111, 117 ¶ 16, 485 P.3d 1068, 1074 (2021) (recognizing the need for full disclosure of all facts to maintain the integrity of the judiciary despite having no general constitutional right to discovery); Indus. Comm'n v. Superior Court , 122 Ariz. 374, 375, 595 P.2d 166, 167 (1979) (noting that "statutes creating evidentiary privileges are [to be] strictly construed"). These broad principles underlie our analysis of legislative privilege.


¶10 Legislative privilege is a constitutional privilege that emanates from legislative immunity. Fields , 206 Ariz. at 136 ¶ 15, 75 P.3d at 1094. Legislative immunity, in turn, arises from the...

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