State ex rel. Montgomery v. Comm'r Colleen Mathis
| Decision Date | 11 December 2012 |
| Docket Number | No. 1 CA–CV 12–0068.,1 CA–CV 12–0068. |
| Citation | 290 P.3d 1226,231 Ariz. 103 |
| Parties | STATE of Arizona ex rel. William G. MONTGOMERY, Maricopa County Attorney, Petitioner/Appellant, v. Commissioner Colleen MATHIS; Commissioner Linda McNulty; Commissioner Jose Herrera, Respondents/Appellees. Arizona Independent Redistricting Commission, an Independent Constitutional Body, Plaintiff/Petitioner/Appellee, v. Thomas C. Horne, in his official capacity as Attorney General of the State of Arizona, Defendant/Respondent/Appellant. |
| Court | Arizona Court of Appeals |
OPINION TEXT STARTS HERE
William G. Montgomery, Maricopa County Attorney By Bruce P. White, M. Colleen Connor, Phoenix, Attorneys for Petitioner/Appellant State of Arizona.
Gallagher & Kennedy, P.A. By Paul K. Charlton, Quintin H. Cushner, Phoenix, Attorneys for Respondent/Appellee Mathis.
Coppersmith, Schermer & Brockelman, PLC By Andrew S. Gordon, Roopali Hardin Desai, Phoenix, Attorneys for Respondent/Appellee McNulty.
Timothy Nelson, P.L.L.C. By Timothy A. Nelson, Phoenix, Attorneys for Respondent/Appellee Herrera.
Osborn Maledon, P.A. By Mary R. O'Grady, Joseph N. Roth, Phoenix, and Ballard Spahr, L.L.P. By Joseph A. Kanefield, Brunn W. Roysden, III, Phoenix, Attorneys for Plaintiff/Petitioner/Appellee Arizona Independent Redistricting Commission.
¶ 1 Petitioner/Appellant, State of Arizona ex rel. William G. Montgomery, Maricopa County Attorney, and Thomas C. Horne, the Arizona Attorney General (collectively “the State”) 1 appeal the superior court's judgment in favor of the Arizona Independent Redistricting Commission (“the IRC”) and Commissioners Mathis, McNulty, and Herrera (“Commissioners”) (collectively “Appellees”). On appeal, the State asserts that the court erred in determining that: (1) Arizona's Open Meeting Law (“OML”), Arizona Revised Statutes (“A.R.S.”) sections 38–431to –431.09 (2011 & Supp. 2012),2 does not apply to the IRC; and (2) the IRC's communications at issue here enjoy legislative immunity. The State also argues that the court erred by failing to determine that the IRC lacked the capacity to sue the Attorney General for declaratory and injunctive relief related to the OML and legislative immunity. Finally, the State asserts that if the IRC is subject to the OML, then the Maricopa County Attorney is vested with authority pursuant to A.R.S. § 38–431.06 to conduct an investigation of alleged OML violations and the superior court cannot enjoin such an investigation.
¶ 2 We determine that the IRC has capacity to seek the declaratory and injunctive relief sought here. We also hold that the OML applies to the IRC to the extent it does not conflict with the relevant provisions of the Arizona Constitution establishing the IRC, and the communications here are not protected by legislative immunity insofar as they relate to hiring a mapping consultant. However, because the State has not appealed the superior court's decision that there is no reasonable cause to support the investigation of the acts alleged to be in violation of the OML, we affirm the entry of summary judgment in favor of the Appellees and the injunction against a further investigation under the OML of the alleged acts.
¶ 3 In August 2011, the Attorney General issued written civil investigative demands (“CIDs”) to the IRC commissioners.3 According to the Attorney General, the IRC chairperson called the commissioners individually to discuss the selection of a mapping consultant for the IRC. It is undisputed for purposes of summary judgment that those phone calls were made and that at a later public meeting the IRC voted to hire a mapping consultant. No one challenges that the public meeting was held in accordance with the OML.
¶ 4 After the Commissioners refused to comply with the CIDs, the Attorney General filed a petition seeking to enforce the demands pursuant to his authority under A.R.S. § 38–341.06 (Maricopa County Superior Court Case No. CV2011–016442). The Appellees then filed a complaint against the Attorney General seeking: (1) injunctive relief and a declaratory judgment that the IRC was not subject to the OML; and (2) a determination that the Commissioners enjoyed legislative privilege for the acts under investigation (Maricopa County Superior Court Case No. CV2011–017914).
¶ 5 The Attorney General moved to dismiss the IRC's lawsuit, asserting that the IRC lacked standing to sue for the purposes stated in the complaint. The Attorney General argued that the IRC had the authority to sue and be sued only as granted by the Arizona Constitution, which is limited to suits involving the redistricting plan and the adequacy of resources for its operation.
¶ 6 The superior court consolidated the two actions and the IRC simultaneously responded to the motion to dismiss and filed a motion for summary judgment in which the Commissioners joined. The IRC asserted that pursuant to its constitutional charter it had standing to sue to fulfill its constitutional mandate of independence and, in any event, the court should waive any standing requirements because the issues raised were of great public importance and would not result in the issuance of an advisory opinion. The IRC also maintained that it was entitled to summary judgment on its complaint because the IRC was not subject to the OML, but rather to the separate mandate of openness found in Article 4, Part 2, Section 1(12), of the Arizona Constitution (hereinafter “Open Meeting Clause”). The IRC argued that the Open Meeting Clause not only supplanted the OML, but also that Article 4, Part 2, Section 1(10), of the Arizona Constitutionprovides the only mechanism for enforcement of compliance with the Open Meeting Clause (removal by the Governor with concurrence of the Senate), which does not include authority to use investigative powers pursuant to A.R.S. § 38–431.06. The IRC also maintained that principles of separation of powers confirmed that the Attorney General could not investigate the IRC under the powers granted by the OML. The IRC alternatively argued that, even assuming the OML applies to the IRC, the CIDs invaded the IRC commissioners' legislative privilege. Finally, the Commissioners contended that there was no reasonable cause for the investigation.
¶ 7 The State responded to the IRC's motion and also filed a cross-motion for summary judgment.4 The State argued that because the ballot initiative and constitutional amendment creating the IRC did not expressly exempt it from the OML, the OML must apply to the IRC, and that the Open Meeting Clause does not conflict with the OML, making the laws harmonious. The State also argued that legislative privilege does not prevent the investigation here because the decision to choose a mapping consultant was made in private conversations before a public meeting, was not about the actual selection of the consultant, and the selection of the consultant was administrative, not legislative, in nature.
¶ 8 At oral argument on the motions, the State informed the superior court that it was no longer pursuing a summary judgment ruling that the serial communications alleged in the petition for enforcement violate the OML.
¶ 9 The superior court denied the State's motion to dismiss and its cross-motion for summary judgment, and granted the IRC summary judgment. First, the court found that it was unnecessary to determine whether the IRC's limited jural status enabled it to seek a declaratory judgment. Rather, any standing requirement did not apply because of the public interest and importance of resolving the issue of whether the IRC is subject to the OML.
¶ 10 Second, the court held the OML does not apply to the IRC. It reasoned that, unlike other constitutionally created boards and commissions, the constitution does not expressly permit the legislature to enact rules for the IRC; instead the constitution itself provides detailed rules for the IRC. The court noted that the OML existed at the time the voters amended the constitution and created the IRC, and they could have subjected the IRC to the OML had it been desired by incorporating the OML by reference, reiterating its requirements in the constitution, or by authorizing the legislature to prescribe additional rules. The court also noted that the voters approved entirely new open meeting language that, compared to the OML, was more stringent in some respects and less stringent in others. The court determined that the Open Meeting Clause was not coextensive with the OML and, although openness of IRC meetings was important, it was more important to insulate the IRC from interference by political branches which would occur by subjecting the IRC to the OML.
¶ 11 Third, the superior court alternatively determined that the doctrine of legislative immunity protects the official acts of the IRC and its commissioners, and the choice of a mapping consultant is a legislative task rather than an administrative act, thus making the communications involved privileged. The court noted that the allegation of wrongdoing was not about improper handling of the application process or determining contractual compensation, but rather the IRC commissioners failed to perform official legislative acts by improperly agreeing on a consultant.
¶ 12 Fourth, the superior court determined that because the State conceded it was not seeking a ruling whether the alleged serial communications were a violation of the OML, even if the court found the OML applied to the IRC, “it would appear that the State has not stated ‘reasonable cause to believe there may have been a violation’ of the [OML]” and “the Court would correctly dismiss the State's action on that basis.”
¶ 13 Finally, the court concluded that given its holdings, neither the Attorney General nor any county attorney may proceed with the investigation except as provided by the Arizona Rules of Procedure for Special Actions.
¶ 14 The court issued a final signed judgment...
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