DAVID WELCH, INDIVIDUALLY AND ON BEHALF OF ALL CITIZENS OF COCHISE COUNTY, PRECINCT FIVE, Petitioner/Appellant, v. COCHISE COUNTY BOARD OF SUPERVISORS, PATRICK G. CALL, ANN ENGLISH, AND PEGGY JUDD, Respondents/Appellees.
No. CV-20-0322-PR
Supreme Court of the State of Arizona
September 2, 2021
251 Ariz. 379 | 492 P.3d 301
CHIEF JUSTICE BRUTINEL authored the opinion of the Court, in which VICE CHIEF JUSTICE TIMMER, and JUSTICES BOLICK, LOPEZ, BEENE, MONTGOMERY, and JUDGE BAILEY joined.
Appeal from the Superior Court in Cochise County, The Honorable Monica L. Stauffer, Presiding Judge, No. S0200CV201900060. REVERSED AND REMANDED. Opinion of the Court of Appeals, Division Two, 250 Ariz. 186 (App. 2020). AFFIRMED IN PART; VACATED IN PART.
David L. Abney (argued), Ahwatukee Legal Office, P.C., Phoenix; and D. Christopher Russell, The Russell‘s Law Firm, PLC, Sierra Vista, Attorneys for David Welch
James M. Jellison (argued), Jellison Law Offices, P.L.L.C., Carefree, Attorneys for Cochise County Board of Supervisors, Patrick G. Call, Ann English, and Peggy Judd
Mark Brnovich, Arizona Attorney General, Joseph A. Kanefield, Chief Deputy and Chief of Staff, Brunn “Beau” W. Roysden, III, Solicitor General, Michael S. Catlett (argued), Deputy Solicitor General, Katherine H. Jessen, Assistant Attorney General, Phoenix, Attorneys for Amicus Curiae Arizona Attorney General
Nicholas D. Acedo, Struck Love Bojanowski & Acedo PLC, Chandler, Attorneys for Amici Curiae Arizona Counties Insurance Pool, The County Supervisors Association of Arizona, and The Arizona School Risk Retention Trust, Inc.
CHIEF JUSTICE BRUTINEL authored the opinion of the Court, in which VICE CHIEF JUSTICE TIMMER, and JUSTICES BOLICK, LOPEZ, BEENE, MONTGOMERY, and JUDGE BAILEY
CHIEF JUSTICE BRUTINEL, opinion of the Court:
¶1 Arizona‘s open-meeting and conflict-of-interest (collectively, “public accountability“) laws grant “[a]ny person affected by” either “an alleged violation” or “a decision of a public agency” standing to enforce their respective requirements.
¶2 The open-meeting law also provides that “[a]ll legal action” taken in violation thereof is “null and void” unless the public body later takes the proper steps to “ratify” that action.
¶3 Accordingly, we vacate those portions of the court of appeals’ opinion analyzing the laws’ enforcement provisions through the lens of taxpayer standing, affirm its reversal of the trial court, and remand to the trial court for further proceedings.
I. BACKGROUND
¶4 It all started with a judicial vacancy. Following the resignation of the Justice of the Peace for Justice Precinct Five, the Cochise County Board of Supervisors posted a public notice for a special meeting to decide on a selection process and to fill the vacancy. The agenda also included notice of a possible executive session.
¶5 During the meeting, the Board considered application and committee-driven appointment processes but eventually opted for a direct appointment. The Board then went into executive session, returned after half an hour, and voted 3–0 to table the matter and recess until later that morning. The Board did not reconvene, however, until the afternoon, nearly an hour after the noticed time. Supervisor Ann English immediately moved to appoint Supervisor Patrick Call to fill the vacancy, and the Board appointed Call as Justice of the Peace by a 2–0 vote, with Call abstaining.
¶6 Two days later, David Welch, a Precinct Five resident and taxpayer, brought a special action challenging Call‘s appointment as a violation of Arizona‘s public accountability laws. See
¶7 Shortly after Welch amended his complaint to seek additional relief, including the removal of the Board‘s entire membership from office, the case was reassigned to a different judge1 who vacated the TRO and denied Welch‘s motion for further injunctive relief. In the meantime, the Board noticed and held a ratification meeting and voted 2–0 to ratify Call‘s appointment.
¶8 The trial court subsequently dismissed Welch‘s amended complaint. Most relevant here, the court found Welch lacked standing to enforce Arizona‘s public accountability laws. Additionally, the court determined that the Board‘s ratification of Call‘s appointment had cured any open-meeting violation, thereby mooting Welch‘s corresponding claim. Welch appealed.
¶9 The court of appeals reversed, holding that Welch‘s status as a Precinct Five resident and taxpayer made him a “person affected by” expenditures made in violation of Arizona‘s public accountability laws, see
¶10 We granted review to clarify private claimants’ standing to challenge alleged violations of Arizona‘s public accountability laws and to decide what effect statutory ratification has on a private claimant‘s open-meeting claim. We have jurisdiction under
II. DISCUSSION
¶11 The parties’ dispute boils down to whether taxpayer standing suffices to enforce Arizona‘s public accountability laws and whether statutory ratification moots an open-meeting claim. We review such legal questions de novo. State v. Hansen, 215 Ariz. 287, 289 ¶ 6 (2007). As ever, our aim in statutory interpretation is “to effectuate the legislature‘s intent.” Stambaugh v. Killian, 242 Ariz. 508, 509 ¶ 7 (2017). Absent ambiguity or absurdity, our inquiry begins and ends with the plain meaning of the legislature‘s chosen words, read within the “overall statutory context.” Rosas v. Ariz. Dep‘t of Econ. Sec., 249 Ariz. 26, 28 ¶ 13 (2020). Otherwise, we turn to “secondary” factors, such as subject matter, history, purpose, and consequences. Id.
A. Standing
¶12 The Arizona Constitution omits a “case or controversy” requirement akin to the one contained in its federal counterpart. City of Surprise v. Ariz. Corp. Comm‘n, 246 Ariz. 206, 209 ¶ 8 (2019). For this reason, we are “not constitutionally constrained to decline jurisdiction based on lack of standing.” Id. Still, Arizona courts do “exercise restraint to ensure they ‘refrain from issuing advisory opinions, that cases be ripe for decision and not moot, and that issues be fully developed between true adversaries.‘” Id. (quoting Bennett v. Brownlow, 211 Ariz. 193, 196 ¶ 16 (2005)). Standing may be conferred by a statute. See id. at 209–10 ¶ 9.
¶13 Both the open-meeting and the conflict-of-interest law contain similarly worded enforcement provisions that confer standing. “Any person affected by” either “an alleged violation” of the open-meeting law,
¶15 Neither law defines “affected by,” and dictionaries circularly define “affect” as meaning “to produce an effect on” or “to influence in some way.” Affect, Black‘s Law Dictionary (11th ed. 2019); accord Affect, Merriam-Webster, https://www.merriam-webster.com/dictionary/affect (last visited Aug. 31, 2021); see also State v. Pena, 235 Ariz. 277, 279 ¶ 6 (2014) (“Absent statutory definitions, courts apply common meanings and may look to dictionaries.” (internal citations omitted)). Such breadth plausibly encompasses any articulable relationship. But such a broad definition would invite absurd results. Indeed, to define “affected by” without any concrete limitation would be to ignore its limiting role. The practical result would be a grant of standing to “any person,” thereby reducing the legislature‘s presumably intentional inclusion of “affected by” to mere surplusage. See Nicaise v. Sundaram, 245 Ariz. 566, 568 ¶ 11 (2019) (“A cardinal principle of statutory interpretation is to give meaning, if possible, to every word and provision so that no word or provision is rendered superfluous.“). We therefore must employ other interpretive tools. Ariz. Dep‘t of Water Res. v. McClellan, 238 Ariz. 371, 375 ¶ 24 (2015).
¶16 The court of appeals attempted to limit this language by reading each law‘s enforcement provision as a grant of taxpayer standing. The court found that Welch‘s ultimate responsibility to replenish misappropriated funds as a Precinct Five resident and taxpayer gave him an “interest in receiving good value” for all Board tax expenditures, including those spent on Call‘s justice of the peace salary. Welch, 250 Ariz. at 193 ¶¶ 16–17. The court then distinguished Welch‘s situation from that in Dail v. City of Phoenix, wherein the court found the claimant‘s taxpayer status inadequate to challenge a city contract to construct a water and sewer system. 128 Ariz. 199, 201–02 (App. 1980). The relevant statute there gave standing to “[a]ny person . . . whose rights . . . are affected by a . . . contract.”
¶17 We can appreciate the logical allure of the approach below. The court of appeals has long considered a challenged action‘s funding source in assessing whether a claimant‘s taxpayer status suffices for standing. See, e.g., Tucson Cmty. Dev. & Design Ctr., Inc. v. City of Tucson, 131 Ariz. 454, 456 (App. 1981) (“Since there has been no expenditure of funds raised by taxation and no pecuniary loss to the city, the mere status of resident taxpayer is insufficient to confer standing.“). And, unlike the contract awarded in Dail, “an expenditure of funds generated through taxation” does pay for Call‘s justice of the peace salary. See 128 Ariz. at 203. Yet a test focused on finding a taxpayer-financed funding source proves meaningless here. Indeed, it is difficult to imagine a government action lacking at least some impact on taxpayer funds. For instance, in Dail, the city employees tasked with negotiating the water project contract surely drew public salaries. But those incidental costs were held not to suffice for standing. See id. at 202 (requiring “a direct expenditure of funds that were generated through taxation, an increased levy of tax, or a pecuniary loss attributable to the challenged transaction of a municipality“). Nor are they enough here.
¶18 We have long observed the “almost universal rule” that taxpayers generally may enjoin the illegal expenditure of taxpayer dollars. Ethington v. Wright, 66 Ariz. 382, 386 (1948); accord Rodgers v. Huckelberry, 247 Ariz. 426, 429–30 ¶¶ 11–14 (App. 2019) (“[A]n allegation of an illegal expenditure has generally been held sufficient to establish standing.“). However, we have never counted preexisting, incidental payroll costs as such an expenditure. See Henderson v. McCormick, 70 Ariz. 19, 24–25 (1950) (taxpayer status insufficient to challenge illegal sale of town-owned vehicle); cf. Ethington, 66 Ariz. at 387 (taxpayer status enough to challenge expenditure of illegally levied tax revenues). Nor, until now, has the court of appeals. See Blanchard v. Show Low Plan. & Zoning Comm‘n, 196 Ariz. 114, 117 ¶ 15 (App. 1999) (homeowners’ taxpayer status insufficient to challenge rezoning of nearby parcel); Tucson Cmty. Dev. & Design Ctr., 131 Ariz. at 458 (no taxpayer standing to challenge city use of block grant funds just because “regular city employees have performed services in furtherance of the project“); Dail, 128 Ariz. at 202–03 (no standing to challenge contract for separately funded project); cf. Rodgers, 247 Ariz. at 429–30 ¶¶ 11–14 (taxpayer standing to challenge illegally awarded contract funded by tax revenues arising from “equitable ownership of such funds and their liability to replenish the public treasury for the deficiency which would be caused by the misappropriation” (quoting Ethington, 66 Ariz. at 386)); Smith v. Graham Cnty. Cmty. Coll. Dist., 123 Ariz. 431, 432–33 (App. 1979) (same); Secrist v. Diedrich, 6 Ariz. App. 102, 104 (1967) (standing for illegal expenditures). We hold to that view today.
¶19 The relationship between the Board‘s decision to appoint Call and his compensation is too remote to support taxpayer standing. A justice of the peace salary, even one paid to a legally dubious nominee, is generally only incidental to his or her appointment. Call‘s appointment is not responsible for his salary‘s existence or for the tax levy that funds it. See Tucson Cmty. Dev. & Design Ctr., 131 Ariz. at 458. Nothing in this record suggests the Board created a new justice of the peace position, increased the post‘s compensation, or otherwise added to taxpayers’ liabilities to accommodate their former colleague. The Board appointed Call to a preexisting position, which was paid a preexisting salary, which was funded by a preexisting tax levy.
¶20 Call‘s salary also bears no relevance to Welch‘s requested relief. See Simon v. E. Ky. Welfare Rts. Org., 426 U.S. 26, 38 (1976) (“[T]he relevant inquiry is whether . . . the plaintiff has shown an injury to himself that is likely to be redressed by a favorable decision.“). A court order restoring those funds to county coffers would not redress the injury of Call‘s allegedly unlawful appointment. Nor would removing Call from his post in any way keep those already-appropriated funds from being used to pay the seat‘s eventual occupant. It was error, then, to credit Welch‘s status as a taxpayer to grant him standing here.
¶21 We further find taxpayer standing itself to be ill-suited to the enforcement of Arizona‘s public accountability laws. Public bodies frequently make decisions that lack any budgetary impact. Filling an existing judicial vacancy is but one example. Yet an absence of expenditures hardly exempts these decisions from the same transparency and impartiality requirements that govern new appropriations. See
¶22 The cases relied on by the court of appeals underscore this incompatibility. In each instance, taxpayer standing acted as a check on potential claims. See Rodgers, 247 Ariz. at 429–30 ¶¶ 12–13 (claimant must show expenditure of tax-generated funds or pecuniary loss); Tucson Cmty. Dev. & Design Ctr., 131 Ariz. at 456 (same); Dail, 128 Ariz. at 203 (same); Smith, 123 Ariz. at 433 (same); Secrist, 6 Ariz. App. at 104 (same). Dail illustrates an appropriate use of taxpayer standing. The court there used taxpayer standing to reject the argument that a claimant‘s taxpayer
¶23 As for an appropriate test, we do not write on a blank slate. In City of Scottsdale v. McDowell Mountain Irrigation & Drainage District, we construed a statute allowing “any person affected [by]” a county board decision organizing an irrigation district to file suit challenging that district‘s validity. 107 Ariz. 117, 121 (1971). Given the statute‘s remedial purpose, we read its enforcement provision broadly—specifically, we asked “whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute.” Id. (quoting Ass‘n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153 (1970)). Notably, there, we refused to find standing based on the individual claimant‘s status as a county taxpayer, finding his fear of future tax increases to fund the new district too remote and speculative. Id. at 121–22. Meanwhile, we found that the city‘s statutory interest in keeping a defined area of adjacent land clear for its own expansion fell within the relevant zone of interests, given the district‘s planned incursion into that protected area. Id. at 122.
¶24 We conclude that the same “zone of interests” test applies here. In addition to having almost identically worded enforcement provisions, Arizona‘s public accountability laws, like the City of Scottsdale statute, are remedial in nature. See id. at 121; see also Scenic Ariz. v. City of Phx. Bd. of Adjustment, 228 Ariz. 419, 422 ¶ 7 (App. 2011) (analyzing statute permitting “person aggrieved” by board decision to sue for remedial relief and noting that it is to be broadly construed). To that end, the open-meeting law instructs courts to construe its provisions “in favor of open and public meetings.”
1. The Open-Meeting Law
¶25 Welch‘s interests as a Cochise County resident fall within the zone of interests protected by the open-meeting law. See City of Scottsdale, 107 Ariz. at 121. The legislature enacted the law “to open the conduct of the business of government to the scrutiny of the public and to ban decision-making in secret.” Karol v. Bd. of Educ. Trs., 122 Ariz. 95, 97 (1979). It further declared that government proceedings “exist to aid in the conduct of the people‘s business.” 1962 Ariz. Sess. Laws ch. 138, § 1 (2d Reg. Sess.). As one such person and, more specifically, as one of the Board‘s constituents, Welch has an interest in ensuring that the Board‘s “official deliberations and proceedings be conducted openly.” Id.; accord
¶26 Our interpretation‘s recognition of a large class of claimants under the open-meeting law does not cause us to question its soundness. We rejected use of taxpayer standing precisely for its underinclusiveness. Supra ¶¶ 19–20. The law‘s remedial purpose favors a more inclusive reading. See
¶27 We are equally unmoved by Welch‘s failure to personally attend (or try to attend) the meeting that preceded Call‘s appointment. Welch‘s interest in the Board‘s adherence to its open-meeting obligations does not require his presence. As the court of appeals observed, any hindrance to public access—most notably, for the press and other watchdogs, upon which constituents like Welch regularly rely to keep abreast of government operations—affects those to whom such access is guaranteed. See Welch, 250 Ariz. at 192 ¶ 14 & n.2. We agree with that assessment.
¶28 The out-of-state decisions relied on by the Board are no more availing. In Arnold v. City of Stanley, the court construed near-identical language in the Idaho open-meeting law to deny standing to claimants seeking to nullify an ordinance adopted at a meeting that had started half an hour ahead of schedule. 345 P.3d 1008, 1009–10 (Idaho 2015); see
“narrow” construction given statutory directive to construe Arizona‘s open-meeting law broadly).
¶29 We also note the secrecy shrouding Call‘s appointment. Cf. Arnold, 345 P.3d at 1012 (“[T]he circumstances under which the meetings were held in this case do not indicate secrecy.“). The apparent brevity of the Board‘s initial meeting, the unknown discussions during executive session, the unexplained hour-long delay in reconvening, and the surprise nomination of a sitting supervisor together raise the specter of secrecy in a manner not analogous to simply starting a meeting half an hour earlier than originally noticed. Cf. id.
¶30 The Board‘s reliance on Severson v. City of Burlington fares no better. See 215 A.3d 102 (Vt. 2019). For starters, the Vermont open-meeting law‘s use of “aggrieved by” entails a standard different from the “affected by” one that governs the enforcement of Arizona‘s open-meeting law. See
¶31 Even if the standards were the same, Severson still poses no impediment to standing
2. The Conflict-of-Interest Law
¶32 The same result follows for Welch‘s conflict-of-interest claim. Although the law‘s enforcement depends upon a distinct trigger—namely, “a decision of a public agency,”
¶33 The “zone of interests” created by the conflict-of-interest law easily encompasses Welch‘s claim. See City of Scottsdale, 107 Ariz. at 121. As a Cochise County resident and Board constituent, he has an interest in protecting against self-dealing by Board members. See Maucher, 145 Ariz. at 337–38. Moreover, here, as a Precinct Five resident who apparently had litigation pending in that justice court at the time, Welch had a particular interest in ensuring the justice of the peace presiding over his claims was not selected through self-dealing. Meanwhile, the circumstances preceding Call‘s appointment plausibly imply his involvement in his own nomination. He took part in the Board‘s decisions to forego other candidate selection methods, to go into executive session, and to table the matter—all without publicly disclosing his interest in the position. The Board then resumed its session an hour after the appointed time and immediately nominated and appointed Call to the post.5 Because the Board‘s decision affected Welch‘s statutorily protected interest in preventing self-dealing, he has standing to challenge it. See
B. Mootness
¶34 Welch‘s standing to enforce the open-meeting law in turn requires us to decide
¶35 The plain language of the statutory ratification provision all but mandates the court of appeals’ interpretation. The word “ratification” means “[c]onfirmation and acceptance of a previous act, thereby making the act valid from the moment it was done.” Ratification, Black‘s Law Dictionary (11th ed. 2019). Hence, ratification is concerned not with the absolution of liability, but with the effectiveness of an initially invalid act. Context and structure reinforce this reading. The provision begins with a default rule that lists a single consequence for legal action taken in violation of the open-meeting law: nullification. See
¶36 The Board‘s suggestion that
¶37 Treating ratification as a complete cure to an open-meeting violation would also ignore the legislature‘s express intent that government proceedings “be conducted openly.” 1962 Ariz. Sess. Laws ch. 138, § 1. Public bodies would have little incentive to hold open meetings in the first instance if they could rest assured that swift ratification upon a violation‘s detection would avoid all statutory
¶38 The cases cited by the Board likewise fail to alter our analysis. Both decisions refer to
¶39 We are similarly unpersuaded by the Board‘s suggestion that the relatively few remedies available to Welch as a private claimant means ratification should serve as a complete cure to such claims. See
¶40 We are nevertheless mindful of the lingering uncertainty as to the remedies still available to Welch.
III. CONCLUSION
¶41 Today‘s opinion does not announce a new standard for garden-variety standing questions. In adopting Arizona‘s public accountability laws, the legislature made clear its desire that their provisions be broadly enforceable by all having an interest in the transparency and accountability of those public agencies and officials that act on their behalf. These interests exist independently of one‘s active involvement in or attendance of government meetings, and they are affected even when there is nobody there to witness their violation. It is for these reasons that we hold that