State ex rel. Woods v. Block

• Citation: 189 Ariz. 269,942 P.2d 428
• Decision Date: 15 July 1997
• Docket Number: No. CV-96-0461-SA,CV-96-0461-SA
• Parties: , 247 Ariz. Adv. Rep. 22 STATE of Arizona ex rel. Grant WOODS, Attorney General, Petitioner. v. Michael BLOCK, Ralph Pew, and Steven J. Twist, in their official capacity as Members of the Arizona Constitutional Defense Council, Respondents.
• Court: Supreme Court of Arizona

Page 428

942 P.2d 428

189 Ariz. 269, 247 Ariz. Adv. Rep. 22

STATE of Arizona ex rel. Grant WOODS, Attorney General, Petitioner. v. Michael BLOCK, Ralph Pew, and Steven J. Twist, in their official capacity as Members of the Arizona Constitutional Defense Council, Respondents.

No. CV-96-0461-SA.

Supreme Court of Arizona,

En Banc.

July 15, 1997.

[189 Ariz. 270] Grant Woods, Attorney General by W. Mark Sendrow, Assistant Attorney General, Nancy M. Bonnell, Assistant Attorney General, Phoenix, for Petitioner.

Scott Harshbarger, Massachusetts Attorney General by Thomas H. Green, Assistant Attorney General, Boston, MA, for Amicus Curiae Attorneys General of the States of Massachusetts, California, Colorado, Connecticut, Florida, Guam, Hawaii, Idaho, Illinois, Iowa, Kansas, Louisiana, Maine, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, New York, North Dakota, Ohio, Oklahoma, Oregon, Rhode Island, Texas, Utah, Vermont, Virgin Islands, Washington, and Wyoming.

Michael K. Block, in Propria Persona, Phoenix. W. Ralph Pew, in Propria Persona, Mesa. Steven J. Twist, in Propria Persona, Scottsdale, Scottsdale--and--Bryan Cave L.L.P. by Neil Vincent Wake, Phoenix--and--Cooper and Carvin, P.L.L.C. by Charles J. Cooper, Washington, DC--and--Shaw Pittman Potts & Trowbridge by Michael W. Kirk, Washington, DC, for Respondents.

OPINION

MOELLER, Justice.

FACTS

In 1994, the Arizona Legislature created the Arizona Constitutional Defense Council ("CDC"). A.R.S. § 41-401 (Supp.1996). CDC's stated purpose is "restoring, maintaining, and advancing the state's sovereignty and authority over issues that affect this state and the well-being of its citizens by taking any action it deems appropriate." A.R.S. § 41-401(B) (Supp.1996). As originally formed, CDC consisted of three members: the Governor or his designee, a member appointed by the President of the Senate, and a member appointed by the Speaker of the House of Representatives. 1994 Ariz. Sess. Laws Ch. 222 (amended version at A.R.S. § 41-401(A) (Supp.1996)). Under the original statute, CDC could direct the Attorney General to initiate any action on its behalf to further its purposes. Id. CDC also could hire outside legal counsel, but the Attorney General was required to negotiate contracts with outside counsel and approve all claims for legal fees. Id. Additionally, the Attorney General could "direct or assist any council attorney in any manner deemed appropriate by the attorney general to best serve the purposes of the council." Id. CDC was appropriated $1 million for 1994-1995 through a revolving fund.

After CDC was formed, the Attorney General was an active participant in decisions by CDC to challenge federal actions. Although the Attorney General and CDC usually worked cooperatively in pursuing litigation, some conflicts arose. In one instance the Attorney General rejected CDC's request to intervene in a federal action because the Attorney General believed intervention was not in the best interest of the state. ¹ On another occasion, CDC's attorneys presented a memorandum to the Attorney General setting forth a strategy for lifting federal court injunctions against prison administrators in Arizona. The Attorney General did not agree with the entire strategy, but did agree to seek certain modifications of the injunctions.

In a case brought and funded mostly by CDC at the request of Arizona's judicial department, the state reached a successful settlement with the United States Department of Justice over four superior court judgeships that had been challenged under the federal Voting Rights Act. Some members of CDC were frustrated with the settlement because it prevented them from asking the United States Supreme Court to resolve certain constitutional issues. Because of the then-existing structure of CDC, it was not able to "take the risk" of trying to bring the case before the Supreme Court and hoping that it would grant jurisdiction. Constitutional Defense Council: Minutes of Meeting (Apr. 22, 1996) (on file with the Secretary of the Senate). Rather, CDC had to yield to the requests of the judicial department and the Attorney General, who supervised the litigation.

Against this background of conflict between CDC and the Attorney General, amendments to the CDC Act were proposed and enacted in the 1996 legislative session. The goal of the amendments was to remove the veto power of the Attorney General and his position as gatekeeper of the funds used by CDC. ² The amendments removed all power of the Attorney General relative to CDC and added two advisory members to CDC--the Chairman of the House of Representatives Committee on States' Rights and Mandates and the Chairman of the Senate Committee on Government Reform. A.R.S. § 41-401 (Supp.1996). The Attorney General's office informed the Senate Committee on Government Reform that the amendments violated separation of powers by putting the Legislature in a position in which it is both making the laws and carrying out the laws. Senate Committee on Government Reform: Minutes of Meeting (Mar. 12, 1996) (on file with the Secretary of the Senate). The amendments gave CDC authority to initiate and pursue "any action concerning a law, regulation, order, policy or decision of the United States or any agency of the United States, including court rulings, that the council determines will further its purposes." A.R.S. § 41-401(F) (Supp.1996). The amendments permit CDC to pay out funds to outside counsel from the revolving fund without any approval by the Attorney General. The only approval that must be obtained by CDC is for the payment of funds over $50,000, and that approval is from the Joint Legislative Budget Committee. The only other check on the expenditure of funds by CDC is an after-the-fact report of funds spent which is to be submitted each month by the Department of Administration to CDC's members, the President of the Senate, the Speaker of the House of Representatives, the Joint Legislative Budget Committee, and the Governor. A.R.S. § 41-401(I) (Supp.1996).

After the 1996 amendments, CDC, without any participation by the Attorney General, filed motions on behalf of the State of Arizona in various federal district court proceedings, asserting positions in part contrary to those being asserted by the Attorney General on behalf of the state in those same proceedings. The Attorney General then filed a petition for special action with this court against CDC and its members. The petition requests us to find A.R.S. § 41-401, as amended, unconstitutional and to prohibit CDC from exercising its purported powers and expending public funds.

JURISDICTION

This court has original jurisdiction over the issuance of injunctions and other extraordinary writs to state officers. Ariz. Const. art. VI, § 5.1. This case involves a purely legal issue, which is appropriate for resolution by special action in this court. See Arizona Corp. Comm'n v. State ex rel. Woods, 171 Ariz. 286, 287-88, 830 P.2d 807, 808-09 (1992); see also University of Arizona Health Sciences Ctr. v. Superior Ct., 136 Ariz. 579, 581, 667 P.2d 1294, 1296 (1983) (The supreme court may appropriately consider matters of important public interest that turn entirely on legal issues in a special action.). The case presents an important constitutional issue involving the doctrine of separation of powers and is a matter of statewide importance. See Arizona Corp. Comm'n, 171 Ariz. at 287-88, 830 P.2d at 808-09. For these reasons, we accept jurisdiction of the special action and proceed to the issues presented.

STANDING OF THE ATTORNEY GENERAL

CDC argues that the Attorney General lacks standing to maintain this action. In response, the Attorney General contends that he has standing under three separate theories: his obligation to uphold the Arizona Constitution, and two statutory grounds--A.R.S. § 12-2041 (action in quo warranto), and A.R.S. § 35-212 (challenging the illegal expenditure of funds). We will separately analyze each of these three contentions in the context of this particular case after discussing the general role of the Attorney General in Arizona.

I. The Role of the Attorney General in Arizona

In Arizona, the Attorney General has no common law powers; "whatever powers he possesses must be found in the Arizona Constitution or the Arizona statutes." Fund Manager, Public Safety Personnel Retirement Sys. v. Corbin, 161 Ariz. 348, 354, 778 P.2d 1244, 1250 (App.1988), approved in part, 161 Ariz. 364, 778 P.2d 1260 (1989); see also Arizona State Land Dep't v. McFate, 87 Ariz. 139, 142, 348 P.2d 912, 914 (1960). By statute, the Attorney General has been authorized to bring an action in quo warranto against any person "who usurps, intrudes into or unlawfully holds or exercises any public office ... within the state." A.R.S. § 12-2041(A). An action in quo warranto is an extraordinary proceeding, addressed to preventing a continued exercise of authority unlawfully asserted. Johnson v. Manhattan Ry. Co., 289 U.S. 479, 502, 53 S.Ct. 721, 729, 77 L.Ed. 1331 (1933). Additionally, the Attorney General has statutory authority to bring an action to prevent the illegal payment of monies or to recover monies alleged to be illegally paid. A.R.S. § 35-212.

Arizona also has long considered the Attorney General to be a key player in litigation concerning a statute's constitutionality. A party challenging the constitutionality of a statute must serve the Attorney General, who is entitled to be heard. A.R.S. § 12-1841 (Supp.1996). The statute imposing this requirement was recently amended to provide that if the Attorney General is not timely served with the proper notice, the court, upon motion by the Attorney General, "shall vacate any finding of unconstitutionality and shall give the attorney general a reasonable opportunity to prepare and be heard." Id. Although A.R.S. § 12-1841 gives the Attorney General broad power to argue in...