ANDY BIGGS; ANDY TOBIN; NANCY BARTO; JUDY BURGES; CHESTER CRANDELL; GAIL GRIFFIN; AL MELVIN; KELLI WARD; STEVE YARBROUGH; KIMBERLY YEE; JOHN ALLEN; BRENDA BARTON; SONNY BORRELLI; PAUL BOYER; KAREN FANN; EDDIE FARNSWORTH; THOMAS FORESE; DAVID GOWAN; RICK GRAY; JOHN KAVANAGH; ADAM KWASMAN; DEBBIE LESKO; DAVID LIVINGSTON; PHIL LOVAS; J.D. MESNARD; DARIN MITCHELL; STEVE MONTENEGRO; JUSTIN OLSON; WARREN PETERSEN; JUSTIN PIERCE; CARL SEEL; STEVE SMITH; DAVID STEVENS; BOB THORPE; KELLY TOWNSEND; MICHELLE UGENTI; JEANETTE DUBREIL; KATIE MILLER; TOM JENNEY, Pеtitioners, v. THE HONORABLE KATHERINE COOPER, JUDGE OF THE SUPERIOR COURT OF THE STATE OF ARIZONA, IN AND FOR THE COUNTY OF MARICOPA, Respondent Judge, JANICE K. BREWER, IN HER OFFICIAL CAPACITY AS GOVERNOR OF ARIZONA; THOMAS J. BETLACH, IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE ARIZONA HEALTH CARE COST CONTAINMENT SYSTEM, Real Parties in Interest.
No. CV-14-0132-PR
SUPREME COURT OF THE STATE OF ARIZONA
Filed December 31, 2014
234 Ariz. 515, 323 P.3d 1166 (2014)
Appeal from the Superior Court in Maricopa County, The Honorable Katherine M. Cooper, Judge, No. CV2013-011699, REVERSED IN PART; REMANDED. Opinion of the Court of Appeals, Division One, 234 Ariz. 515, 323 P.3d 1166 (2014), AFFIRMED IN PART; VACATED IN PART
Clint Bolick, Kurt M. Altman, and Christina Sandefur (argued), Scharf-Norton Center for Constitutional Litigation at the Goldwater Institute, Phoenix, Attorneys for Andy Biggs; Andy Tobin; Nancy Barto; Judy Burges; Chester Crandell; Gail Griffin; Al Melvin; Kelli Ward; Steve Yarbrough; Kimberly Yee; John Allen; Brenda Barton; Sonny Borrelli; Paul Boyer; Karen Fann; Eddie Farnsworth; Thomas Forese; David Gowan; Rick Gray; John Kavanagh; Adam Kwasman; Debbie Lesko; Dаvid Livingston; Phil Lovas; J.D. Mesnard; Darin Mitchell; Steve Montenegro; Justin Olson; Warren Petersen; Justin Pierce; Carl Seel; Steve Smith; David Stevens; Bob Thorpe; Kelly Townsend; Michelle Ugenti; Jeanette Dubreil; Katie Miller; Tom Jenney
Douglas C. Northup, Timothy Berg (argued), Patrick Irvine, and Carrie Pixler Ryerson, Fennemorе Craig, P.C., Phoenix, Attorneys for Governor Janice K. Brewer and Director Thomas J. Betlach; and Joseph Sciarrotta, Jr., Office of Governor Janice K. Brewer, Phoenix, Co-Counsel for Governor Janice K. Brewer
Timothy M. Hogan and Joy Herr-Cardillo, Arizona Center for Law in the Public Interest, Phoenix; and Ellen Sue Katz, William E. Morris Institute for Justice, Phoenix, Attorneys for Amici Curiae Arizona Center for Law in the Public Interest and The William E. Morris Institute for Justice
Kory A. Langhofer and Thomas J. Basile, Brownstein Hyatt Farber Schreck, LLP, Phoenix, Attorneys for Amici Curiae Arizona Hospital and Healthcarе Association, Abrazo Health Care, Banner Health, and Dignity Health
Joseph A. Kanefield and Brunn W. Roysden, III, Ballard Spahr LLP, Phoenix, Attorneys for Amici Curiae Fife Symington, III, et al.
James S. Burling, Pacific Legal Foundation, Sacramento, CA, Attorneys for Amicus Curiae Pacific Legal Foundation
Carrie Ann Donnell, Sitren Legal, Phoenix, Attorneys for Amicus Curiae Howard Jarvis Taxpayers Association
JUSTICE BERCH authored the opinion of the Court, in which CHIEF JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, and JUSTICES BRUTINEL and TIMMER joined.
JUSTICE BERCH, opinion of the Court:
¶1 We granted review to determine whether a group of legislators who voted against House Bill (“HB“) 2010 has standing to challenge whether it was passed in a constitutional manner. Because the group had enough votes to have blocked the bill if passage required a supermajority vote, the group has alleged an injury sufficient to confer stаnding.
I. BACKGROUND
¶2 In the Fifty-First Arizona State Legislature, representatives introduced HB 2010 to expand Arizona‘s indigent healthcare program. HB 2010 includes an assessment on hospitals designed to help fund the healthcare expansion. The Arizona Constitution requires that certain acts that increase state revenues must pass the legislature by a supermajority vote.
¶3 Thirty-six legislators who voted against the bill—twenty-seven representatives and nine senators—sued to enjoin enforcement of Arizona‘s healthcare expansion. They claim that by failing to satisfy the supermajority requirement, the legislature violated the constitution and diminished the effectiveness of their votes.
¶4 The superior court dismissed the plaintiff legislators’ claims for lack of standing. The court held, first, that
¶5 The court of appeals reversed. Biggs v. Cooper, 234 Ariz. 515, 323 P.3d 1166 (App. 2014). It held that whether the supermajority requirement applies depends on the constitution‘s commands, not on the legislature‘s discretiоn, and consequently the issue is subject to judicial review. Id. at 520 ¶ 9. The court then held that if the plaintiffs are correct on the merits, their votes on HB 2010 were nullified, and therefore they have standing to challenge the resulting law. Id. at 521 ¶ 15 (citing Coleman v. Miller, 307 U.S. 433, 438 (1939); Bennett, 206 Ariz. at 526 ¶ 28).
¶6 We granted review because the petition raises an unresоlved question concerning standing to challenge legislative compliance with the constitution‘s requirement that certain laws be enacted by a supermajority. This legal issue is of statewide importance.
II. DISCUSSION
¶7 The Arizona Constitution requires that certain revenue-generating bills bе passed by a “vote of two-thirds of the members of each house of the legislature.”
¶8 In this case, we decide only whether, once the bill has become law, a group of plaintiff legislators sufficient to have blocked its pаssage has standing to challenge the law‘s enactment by only a majority vote. In Arizona, standing is a prudential consideration rather than a jurisdictional one. Dobson v. State, 233 Ariz. 119, 122 ¶ 9, 309 P.3d 1289, 1292 (2013) (noting that Article III courts are jurisdictionally limited to “cases or controversies,” while Arizona courts are not similarly сonstrained). To have standing, “a plaintiff must allege a distinct and palpable injury.” Sears v. Hull, 192 Ariz. 65, 69 ¶ 16, 961 P.2d 1013, 1017 (1998).
¶10 In Forty-Seventh Legislature, we relied on Coleman in reasoning that if a majority bloc of legislators has sufficient votes to defeat a bill, that bloc may have standing to assert the institutional injury. Forty-Seventh Legislature, 213 Ariz. at 486–87 ¶¶ 14–15 n.4 (citing Bennett, 206 Ariz. at 525 ¶ 22, for the proposition that Arizona courts may find federal case law “instructive“). In Coleman, twenty Kansas
¶11 The United States Supreme Court observed that, if the twenty plaintiff-senators were correct in their allegations, their “votes against ratificatiоn ha[d] been overridden and virtually held for naught” because, but for the lieutenant governor overstepping his authority, their votes would have been sufficient to defeat ratification. Id. at 438. The Court therefore concluded that the senators had alleged a justiciable injury to their “intеrest in maintaining the effectiveness of their votes.” Id.; see also Raines v. Byrd, 521 U.S. 811, 823–24 (1997) (distinguishing Coleman, observing that “legislators whose votes would have been sufficient to defeat . . . a specific legislative Act have standing to sue . . . on the ground that their votes have been completely nullified“).
¶12 Although Coleman involved a ratification requiring a majority vote, the Court‘s reasoning informs this case involving a lawsuit brought
¶13 The votes of the plaintiff representatives here would have sufficed to defeat enactment, if the supеrmajority requirement applies. The Arizona House of Representatives contains sixty members. The twenty-seven representatives’ negative votes equal more than the one-third plus one vote necessary to have defeated HB 2010 in the House if the bill requires a two-thirds vote for enactment. Thus, passage of the bill by a simple majority vote effectively negated the plaintiff representatives’ votes and they, as a bloc, have therefore alleged a “particularized” injury sufficient to confer standing.2 See Coleman, 307 U.S. at 438; Forty-Seventh Legislature, 213 Ariz.
¶14 The superior court nonetheless concluded that the plaintiff legislators’ claims were more like the allegations of the individual legislators in Bennett, which were held to be insufficient to support standing, than those of the twenty senators in Coleman. We disagree. In Bennett, four legislative leaders claimed that the governor unconstitutionally vetoed eleven items in the 2004 Budget and three related Omnibus Reconciliation Bills. Bennett, 206 Ariz. at 522 ¶¶ 1, 3. This Court found that the individual plaintiffs had not shown either specific injury to themselves or nullification of their votes. Id. at 526–27 ¶ 28. We distinguished Coleman by noting that “the twenty-one senators in Coleman constituted a majority of the Kansas Senate” whose votes were nullified by the interference with the legislative process. Id. at 527 ¶ 29. That distinction between Coleman and Bennett applies to the plaintiff legislators here, bringing them within Coleman‘s exception and conferring standing.
¶15 Throughout this case, plaintiff representatives have asserted
¶16 The Governor and Director observe that in othеr cases involving lawsuits by legislators, we have not found standing for legislators unless they have obtained the legislature‘s approval to sue. Compare Forty-Seventh Legislature, 213 Ariz. at 486–87 ¶¶ 14–15 (standing found when the entire legislature sued to challenge line-item veto), with Bennett, 206 Ariz. at 526–27 ¶¶ 28–29 (no standing in lawsuit by four legislators to challenge the governor‘s line-item veto). But when, as here, a minority of the legislature sufficient to prevent
¶17 The Governor and Director argue that the plaintiff legislators had other remedies available to them, such as attempting to repeal the law or seeking a referendum on it. But the plaintiff legislators need not exhaust all alternative political remedies before filing suit. See Forty-Seventh Legislature, 213 Ariz. at 487 ¶ 17 (failure to exercise political remedies is a “prudential concern” that weighs in favor of denying standing, but does not require it). If a majority of legislators violates the constitution and thereby injures a minority sufficient to have blocked passage of a bill, we cannot require that minority to pursue the virtually unattainable remedy of overtaking the majority to repeal the law.
¶18 The Governor and Director also encourage us to deny standing because the hospitals subject to the law are more appropriate parties to bring this challenge. The plaintiff legislators, on the other hand,
¶19 Because the votes of the bloc of plaintiff legislators here would have sufficed to defeat HB 2010 if a supermajority was required for enactment, the group has alleged that its members’ votes were effectively nullified. We therefore hold that the superior court erred in dismissing this action for lack of standing by the plaintiff representatives to challenge the constitutional validity of the passage of
¶20 Plaintiff legislators have requested an award of attorneys’ fees. Because there has been no determination on the merits, we deny an award without prejudice to plaintiff legislators’ seeking an award from the superior court should they ultimately prevail in this lawsuit.
III. CONCLUSION
¶21 We approve in part the result reached by the court of appeals