Arizona Court of Appeals, Division One holds that the Legislature lacked standing to challenge Proposition 211 (the Voters’ Right to Know Act), except for one severable provision that unconstitutionally restricted the Legislature’s ability to pass a law limiting the Citizens Clean Election Commission’s rules or enforcement actions in certain circumstances, so the Legislature was not entitled to a preliminary injunction enjoining enforcement of the entire Act.

The Voters’ Right to Know Act (the “Act”), also known as Proposition 211 requires certain covered persons to disclose the original source of their donations used for campaign spending.  The Act’s disclosure requirements are enforced by the Arizona Citizens Clean Elections Commission (the “Commission”).  The Speaker of the Arizona House of Representatives and President of the State Senate (the “Legislature”) challenged two provisions of the Act: (1) A.R.S. § 16-974(A)(8), which allows the Commission to perform “any other act” to implement the Act; and (2) A.R.S. § 16-974(D), which provides that the Commission’s rulemaking authority is not subject to the “prohibition or limit imposed by any other executive or legislative governmental body or official.”  The Legislature claimed that the two statutory provisions violate separation of powers, the nondelegation doctrine, and the Voter Protection Act, and sought to have the Act enjoined in full.  The Legislature also challenged three of the Commission’s rules promulgated under the Act.  The Arizona Secretary of State, the Commission, the Attorney General, and Voters’ Right to Know (“Defendants”) defended the Act.

The superior court denied the Legislature’s request for a preliminary injunction enjoining the entirety of the Act and denied the Defendants’ motions to dismiss.  The court of appeals affirmed in part and reversed in part.  The Court first found that the Legislature sufficiently authorized the Speaker and President to act on its behalf, and that the Legislature had standing to challenge § 16-974(D) because the Legislature’s interpretation of that provision would nullify its authority to pass laws—a direct injury to its authority to make laws. In contrast, the Court found that the Legislature lacked standing to challenge § 16-948(A)(8) because it does not cause an institutional harm.  Instead, the delegation of authority in § 16-974(A)(8) was a broad, but not unbounded, delegation to the executive branch.  For the same reason, the Legislature lacked standing to challenge the three Commission rules because none of the rules regulates the Legislature as an entity and none nullifies legislative power.

Thus, the Court analyzed the constitutionality of only one provision, A.R.S. § 16-974(D).  As noted above, that provision provides that the Commission’s rulemaking authority is not subject to the “prohibition or limit imposed by any other executive or legislative governmental body or official.”  Applying a plain language interpretation to § 16-974(D), the Court found that the Legislature is a “legislative governmental body,” and the Defendants’ interpretation—that “legislative governmental body” refers only to the Administrative Rules Oversight Committee—would render § 16-974(D) partly illusory.  Accordingly, § 16-974(D) unconstitutionally restricts the Legislature’s power to pass a law prohibiting or limiting the Commission’s rules or enforcement actions, even when the Voter Protection Act’s requirements are met or not required to be met.  However, because § 16-974(D) is severable, the Act’s core disclosure requirements remain workable, so the Legislature was not likely to succeed on the merits of its request to enjoin the Act in full.  Thus, the Legislature was entitled to a preliminary injunction only as to § 16-974(D).

Judge Catlett authored the opinion, in which Judges Campbell and Morse joined.

Disclosure: Osborn Maledon attorneys were involved with this case.

Posted by: Sarah Pook Lawson