STEVE MONTENEGRO, ET AL., Plaintiffs/Appellants, v. ADRIAN FONTES, ET AL., Defendants/Appellees, and KRISTIN MAYES, ET AL., Intervenors/Appellees.
No. CV-24-0166-PR
SUPREME COURT OF THE STATE OF ARIZONA
September 29, 2025
258 Ariz 109 (App. 2024)
COUNSEL:
Kory Langhofer (argued), Thomas Basile, Statecraft PLLC, Phoenix, Attorneys for Arizona House of Representative Speaker Steve Montenegro
Craig A. Morgan, Shayna Stuart, Taft Stettinius & Hollister LLP, Phoenix, Attorneys for Secretary of State Adrian Fontes
Mary R. O‘Grady, Eric M. Fraser (argued), Emma J. Cone-Roddy, Alexandria N. Karpurk, Osborn Maledon, P.A., Phoenix, Attorneys for Arizona Citizens Clean Elections Commission
Daniel J. Adelman, Chanele N. Reyes, Arizona Center for Law in the Public Interest, Phoenix, and David Kolker, Tara Malloy and Elizabeth D. Shimek, Campaign Legal Center, Washington, DC, Attorneys for Voters’ Right to Know
Alexander W. Samuels (argued), Nathan T. Arrowsmith, and Luci D. Davis, Arizona Attorney General‘s Office, Phoenix, Attorneys for Arizona Attorney General Kristin K. Mayes
Nate Curtisi, Arizona Chamber of Commerce & Industry, Phoenix, Attorney for Amicus Curiae Arizona Chamber of Commerce & Industry
Dominic E. Draye, Greenberg Traurig, LLP, Phoenix, Attorneys for Amici Curiae Americans for Prosperity and Americans for Prosperity Foundation
Timothy Sandefur, Scharf-Norton Center for Constitutional Litigation at the Goldwater Institute, Phoenix, Attorneys for Amicus Curiae Goldwater Institute
JUSTICE BOLICK authored the Opinion of the Court, in which VICE CHIEF JUSTICE LOPEZ and JUSTICES BEENE, MONTGOMERY, and KING joined. CHIEF JUSTICE TIMMER and JUSTICE BERCH (Ret.)1 dissented.
JUSTICE BOLICK, Opinion of the Court:
¶1 The plaintiffs here are the leaders of the Arizona Senate and House of Representatives authorized by those bodies in a constitutional
¶2 We hold that the legislative leaders have standing to challenge the initiative. However, we also hold that it is premature to determine the question of severability until a ruling on the constitutionality of the challenged provisions, which is not yet before us.
BACKGROUND
¶3 This case involves a constitutional challenge to the Voters’ Right to Know Act. This statutory initiative established new campaign finance disclosure requirements designed to prevent “the practice of laundering political contributions,” otherwise known as “dark money.” See Voters’ Right to Know Act, Proposition 211, § 2(C) (2022) (hereafter “Prop. 211” or “the Act“) (codified at
¶4 Under Prop. 211, “covered persons” who spend “more than $50,000 in statewide campaigns or more than $25,000 in any other type of campaigns” must disclose to the Secretary of State the identities of donors who contribute more than $5,000 toward campaign media spending in an election cycle.
¶5 “The [C]ommission is the primary agency authorized to implement and enforce [Prop. 211].”
¶6 “The [C]ommission‘s rules and any [C]ommission enforcement actions pursuant to this chapter are not subject to the approval of or any prohibition or limit imposed by any other executive or legislative governmental body or official.”
¶7 Prop. 211 further specifies that its “provisions... are severable.” Prop. 211 § 4. Thus, “[i]f any provision of this act or application of a provision to any person or circumstance is held to be unconstitutional, the remainder of this act, and the application of the provisions to any person or circumstance, shall not be affected by the holding.”
¶8 After Arizona voters approved Prop. 211, the House Speaker and Senate President (the “Leaders“) initiated a facial challenge to Prop. 211‘s constitutionality against the Secretary of State and the Commission. Each legislative chamber authorized the Leaders to act on behalf of the Legislature by adopting rules authorizing them to assert claims on each chamber‘s behalf. The Arizona Attorney General and the political action committee that sponsored Prop. 211 intervened in the case to defend the measure. We refer to the Secretary of State, the Commission, the Attorney General, and Voters’ Right to Know (which sponsored Prop. 211) collectively as the “Defendants.”
¶9 The Leaders sought relief under the Uniform Declaratory Judgments Act (“UDJA“). They claimed that Prop. 211 violated constitutional separation of powers,
¶10 The Leaders subsequently moved for a preliminary injunction. The superior court denied the Leaders’ motion, finding that (1) the Commission had not taken any enforcement action under Prop. 211, and thus, the Leaders failed to allege a specific injury caused by the Commission; and (2) there was insufficient evidence that the Legislature intended to introduce a bill “that may affect” Prop. 211 or that legislators declined to take action due to “supposed uncertainty about Prop. 211.” Toma v. Fontes, No. CV 2023-011834 at *4 (Maricopa Cnty. Super. Ct. Dec. 29, 2023).
¶11 The Defendants also filed separate and joint motions to dismiss, contending that the Leaders lacked standing, failed to demonstrate any injury to the Legislature‘s authority, and failed to state a claim for relief. The superior court denied the Defendants’ motions, resolving that “the more effective and efficient way to deal with the issue” was to allow the Leaders to cure any defects in their pleading. Id. at *2.
¶12 The Leaders appealed the superior court‘s denial of injunctive relief. The court of appeals found that the Leaders lacked standing to challenge the entire chapter, but that they had standing to challenge
¶13 As a result, the court of appeals reversed the superior court‘s denial of a preliminary injunction in part, enjoining the “Defendants and their agents... from enforcing
¶14 Defendants filed a petition for review, which this Court granted to determine the following rephrased issues: (1) Do the Legislative Leaders have standing to challenge
DISCUSSION
¶15 As the issues present purely questions of law, we review the decisions below de novo. Roberts v. State, 253 Ariz. 259, 264 ¶ 7 (2022). We address standing and severability in turn.
1. Standing
¶16 The Leaders’ approach toward this lawsuit has shifted over the course of this litigation. Initially, they characterized it as a facial challenge to Prop. 211. A facial challenge requires the challenger to demonstrate that the act cannot be constitutionally enforced under any set of circumstances. AZ Petition Partners LLC v. Thompson, 255 Ariz. 254, 258 ¶ 17 (2023). As the case appears before us, however, the Leaders focus on specific provisions of the law that they contend violate separation of powers, and they assert that the invalid provisions render the entire Act unconstitutional. Regardless, we must determine whether they have standing to challenge the law.
¶17 Our Constitution differs from the United States Constitution in significant ways. Two distinguishing provisions, which are express in one but not the other, are especially pertinent here. First, the Arizona Constitution lacks a “case or controversy” requirement, which is the foundation of the standing doctrine. Bennett v. Napolitano, 206 Ariz. 520, 525 ¶ 19 (2003). But although separation of powers is implicit in the Federal Constitution, it is express in the Arizona Constitution. Roberts, 253 Ariz. at 268 ¶ 32 (“What the United States Constitution structurally implies, the Arizona Constitution makes explicit. Our constitution‘s framers devoted an entire article to separation of powers . . . .“); see also Bennett, 206 Ariz. at 525 ¶ 19 (highlighting these constitutional differences).
¶18 The consequence of not having a case or controversy requirement in our Constitution is that in Arizona, standing is a prudential consideration rather than a mandatory prerequisite to suit. Fay v. Fox, 251 Ariz. 537, 541 ¶ 22 (2021). Surely, the parties here are adversarial to each other over the issues in the lawsuit and have fully, vigorously, and capably argued the law. So we clearly have a case or controversy in the literal sense of the term. See generally Mills v. Ariz. Bd. of Tech. Registration, 253 Ariz. 415, 423 ¶ 23 (2022) (explaining that the doctrines of standing and ripeness ensure, in part, “that issues be fully developed between true adversaries” (quoting City of Surprise v. Ariz. Corp. Comm‘n, 246 Ariz. 206, 209 ¶ 8 (2019))). Moreover, the Leaders proceed under the Uniform Declaratory Judgments Act, which among other things gives the courts “power to declare rights, status, and other legal relations.”
¶19 But usually, especially when we are resolving disputes between branches of government, we have also required some showing of a particularized injury to establish standing. See, e.g., Brewer v. Burns, 222 Ariz. 234, 237 ¶¶ 11–12 (2009). For purposes of determining standing, we assume that the plaintiffs are correct on the merits, id. at 237-38 ¶ 14, although that is not a binding or even preliminary determination. Moreover, because it is a prudential doctrine rather than a constitutional mandate, we can waive standing. See Fay, 251 Ariz. at 541 ¶ 22. Here, as will appear, it is unnecessary to do so because the Leaders have clearly alleged particularized injury sufficient to confer standing.
¶20 The Leaders point to several Prop. 211 provisions that they contend, in tandem, impermissibly transfer legislative power to the Commission.
¶21 The Leaders allege that these provisions constitute a broad, standardless delegation of authority to the Commission, an executive agency. Under the Arizona Constitution, “[t]he legislative authority of the state shall be vested in the legislature,” and in the people acting by initiative or referendum.
¶22 In Roberts, the Court considered whether general language in a statute implicitly authorized a state agency to adopt by rule the federal Fair Labor Standards Act, its implementing regulations, agency guidances, and applicable federal judicial decisions. 53 Ariz. 259, 1012 ¶ 7. We held it did not. Id. at 266–67 ¶¶ 19–26. Relevant to the
¶23 Likewise, in State v. Marana Plantations, Inc., the Court held that a statute investing the state Board of Health with the power to formulate policies affecting public health, and to regulate sanitation practices to promote public health, without limits or guides, violated separation of powers. 75 Ariz. 111, 114 (1953). The Court observed that although both the Legislature and the people may enact laws, “[i]t is fundamental that the legislative power thus entrusted cannot be relinquished nor delegated.” Id. (citing, inter alia, Tillotson v. Frohmiller, 34 Ariz. 394 (1928)). The Court held that “a statute which gives unlimited regulatory power to a commission, board or agency with no prescribed restraints nor criterion nor guide to its action offends the Constitution as a delegation of legislative power.” Id. This type of open-ended delegation of legislative power to the Commission by Prop. 211 is precisely what the Leaders allege violates the Constitution here. As such, it is a “constitutional relinquishment of the legislative power,” id. at 115, which as alleged occasions an institutional injury.
¶24 Nor does the fact that the measure was passed by the people rather than the Legislature alter the analysis. The constitutional reservation to the people of the powers of initiative and referendum “do[es] not in any way affect the division of powers; they remain the same. The people cannot by an initiated law, any more than the Legislature can by an act passed by it, delegate their powers to make laws to an agent or executive or administrative body.” Tillotson, 34 Ariz. at 401.
¶25 Thus, the Leaders unquestionably state a separation of powers claim regarding the Prop. 211 provisions set forth above. The measure purports to give the Commission carte blanche authority to perform any act in furtherance of the measure, without limitation or prohibition by the Legislature, and to establish hegemony for agency rules over contrary statutes.
¶26 Notwithstanding any potential separation of powers issues down the road, Defendants argue that the Legislature has suffered no injury - and hence has no standing-because the Commission has yet to take actions that invade the Legislature‘s prerogative or inhibit its exercise of legislative power.
¶27 Again, Roberts supplies the response: “the legislative power is inalienable.” 253 Ariz. at 270 ¶ 43; see Inalienable, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/inalienable (last visited September 7, 2025) (defining “inalienable” as “incapable of being alienated, surrendered, or transferred“); see also Marana Plantations, 75 Ariz. at 114 (instructing that the legislative authority of the state “cannot be relinquished nor delegated“); Loftus v. Russell, 69 Ariz. 245, 255 (1949) (explaining that the power to legislate is reserved for the people and the legislature). As the Court stated categorically in Hernandez v. Frohmiller, 68 Ariz. 242, 254 (1949), “[i]t is axiomatic that neither the [L]egislature nor the people can delegate to an administrative board the power to legislate.” The Leaders’ complaint alleges that Prop. 211 does exactly that. The alleged injury, therefore, is not the exercise of legislative authority by the Commission, nor any limitation imposed by the Commission on the Legislature‘s ability to legislate in this area of public policy, but rather the delegation of legislative power to an executive agency.
¶29 Perhaps most on point is Forty-Seventh Legislature v. Napolitano, in which the Legislature as a whole challenged the Governor‘s veto of a portion of a state employee compensation bill. 213 Ariz. 482, 484 ¶¶ 4-6 (2006). The Court distinguished Bennett on the ground that the legislature “alleged a particularized injury to the legislature as a whole.” Id. at 486 ¶ 14. The Governor argued that the Legislature nonetheless lacked standing because it had not attempted to override her veto. The Court concluded that “[t]he existence of the injury does not depend upon and is not affected by whether the Legislature attempted to override her veto.” Id. at 487 ¶ 17.
¶30 Similarly, even under the more stringent standing requirements under the Federal Constitution, the U.S. Supreme Court recognized legislative standing under circumstances similar to the present case. In Arizona State Legislature v. Arizona Independent Redistricting Commission, 576 U.S. 787, 792–93 (2015), the Legislature argued that a citizen initiative giving redistricting power to a state agency deprived it of its federal constitutional authority over redistricting. Although the Court upheld the voter measure on the merits, the Court concluded unanimously that the Legislature had standing to challenge it. As it argues here, the Legislature alleged that the initiative would countermand its authority, which the Court characterized as “an institutional plaintiff asserting an institutional injury.” Id. at 802. As here, the Legislature did not seek to assert its authority in a way that contravened the initiative. “To assert standing,” the Court concluded, “the Legislature need not violate the Arizona Constitution.” Id.
¶31 Other Arizona decisions are to similar effect. In Brewer, the Governor argued that the Legislature violated the Constitution by withholding finally passed bills from her review. 222 Ariz. 234, 236 ¶¶ 4-5. The Court held that the Governor had standing because she had “plausibly alleged particularized injury,” whereas the Legislature‘s argument to the contrary went to the merits, and “defendants cannot defeat standing merely by assuming they will ultimately win.” Id. at 238 ¶ 14.
¶32 In Biggs v. Cooper ex rel. County of Maricopa, a group of legislators was found to have standing to contest the adoption of a law by a majority of the Legislature rather than a supermajority, because they had sufficient votes to have blocked the measure if a supermajority was required. 236 Ariz. 415, 420 ¶¶ 18–19 (2014). The defendants argued that the legislators had not sought to attempt to repeal the law or refer it to the voters; however, once again, the Court emphasized that “the plaintiff legislators need not exhaust all alternative political remedies before filing suit.” Id. at 419 ¶ 17 (citing Forty-Seventh Legislature, 213 Ariz. at 487 ¶ 17); accord Coleman v. Miller, 307 U.S. 433, 438 (1939) (holding that a majority of state senators challenging the lieutenant governor‘s tiebreaking vote “have a plain, direct and adequate interest in maintaining the effectiveness of their votes“).
¶33 The dissent urges a more stringent rule on standing in order to prevent the Court from entangling in political and policy disputes. For better or worse, we are called upon—and do—decide “political” disputes a great deal, but only when they present tangible constitutional questions. Ariz. Republican Party v. Richer, 257 Ariz. 237 (2024) (election law challenge); State ex rel. Brnovich v. Ariz. Bd. of Regents, 250 Ariz. 127 (2020) (state constitutional claims). By contrast, we do not decide policy questions, and none are presented here. The Leaders assert a serious separation of powers dispute; and as abundantly illustrated by the cases cited by both the majority and dissent raising such issues, that presents a constitutional rather than a political or policy question.
¶34 The dissent also contends the asserted injury is not tangible or ripe because the Commission has not yet exercised its delegated authority in a way that violates separation of powers. That is akin to arguing that if your credit card is stolen, you can file suit only when the thief uses it. Simply put, the Leaders assert an inalienable power has been alienated. They need not challenge it use-by-use. The legislative power belongs solely to the Legislature and the people. If it is given away, in whole or part, it presents an institutional injury that creates standing. See, e.g., Ariz. State Legislature, 576 U.S. at 802.
¶35 Defendants also argue that the VPA countermands the Leaders’ arguments. The VPA is a constitutional provision enacted by the people providing that any statute passed by popular vote may not be superseded by the Legislature except upon three-fourths vote by both chambers and then only if the change advances the measure‘s purposes.
¶36 Defendants urge that the VPA weighs against the Leaders’ claims because it is as much a part of the Constitution as separation of powers. That it is. But Defendants misapprehend the role the VPA plays in protecting legislation passed by the people. The VPA cannot cure a statute passed at the ballot of its constitutional infirmities. Because the people, just like the Legislature, cannot enact a law that transgresses separation of powers, only laws passed within their authority can be shielded by the VPA against modification. Separation of powers and the VPA essentially combine as a constitutional two-step: the first defines what the three branches of government (including the people acting in their legislative capacity) can do; the second protects valid laws enacted by the people. The VPA does not enlarge the constitutional authority of the people; it only protects their valid legislative handiwork against legislative modification. In that regard, it provides an extra layer of separation of powers, shielding popular enactments against alteration by the people‘s elected representatives.
¶37 Defendants also assert that one of the provisions the Leaders challenge,
¶38 Regardless, both of Defendants’ VPA arguments go to the merits of the Leaders’ claims, not to their standing. We express no view on the merits. But because the Leaders have alleged on behalf of the Legislature a direct and tangible stake in the outcome of the litigation, they have standing to pursue it. See Fay, 251 Ariz. at 541 ¶ 22 (“No injury is more palpable or direct than infringement of a constitutional right.“). For that reason, we need not consider whether to waive this prudential requirement.
2. Severability
¶39 Notwithstanding that the Act contains a severability clause stating that if any provisions are invalidated the remaining provisions will remain in effect, the Leaders contend that removing the unconstitutional provisions would render the Act as a whole unworkable, and therefore the Act must be struck down in its entirety. Defendants respond that even if the challenged provisions are declared unconstitutional, the remainder
¶40 The Court set forth the standard for determining severability of provisions in voter-approved ballot measures in Randolph v. Groscost:
“We will first consider whether the valid portion, considered separately, can operate independently and is enforceable and workable. If it is, we will uphold it unless doing so would produce a result so irrational or absurd as to compel the conclusion that an informed electorate would not have adopted one portion without the other.” 195 Ariz. 423, 427 ¶ 15 (1999).
¶41 A determination of severability is premature before a ruling is made on whether, and to what extent, provisions of the Act are unconstitutional. The merits are not before us, and we will not consider severability in the abstract. The Leaders make a novel argument that we should apply a presumption against severability, even where the voters have enacted a severability provision as part of the measure. We will not entertain such an argument nor consider whether Randolph should be modified in any way, unless and until such questions are properly before us.
ATTORNEY FEES
¶42 Plaintiffs request attorney fees pursuant to
CONCLUSION
¶43 We reverse the trial court‘s decision, vacate the court of appeals’ decision, and remand to the trial court for further proceedings.
TIMMER, C.J., joined by BERCH, J. (Ret.), Dissenting.
¶44 For decades we have steadfastly required a party seeking relief in our courts to “allege a distinct and palpable injury.” Sears v. Hull, 192 Ariz. 65, 69 ¶ 16 (1998). This standing requirement reflects judicial restraint, ensuring courts avoid advisory opinions, resolve ripe—not hypothetical—controversies, and adjudicate disputes between genuine adversaries. See Mills v. Ariz. Bd. of Tech. Registration, 253 Ariz. 415, 423 ¶ 23 (2022). By permitting the legislative leaders (“Leaders“) to challenge the constitutionality of
¶45 The defendants did not seek review of the court of appeals’ decision that
¶46 Section 16-974(A) authorizes the Citizens Clean Elections Commission to “implement and enforce” the Voters’ Right to Know Act by taking several actions, including “[a]dopt[ing] and enforc[ing] rules” and “[p]erform[ing] any other act that may assist in implementing this chapter.” See
Constitution as long as they do not transfer legislative authority to the executive or judicial branches in violation of separation of powers. See
¶47 The Leaders allege that
¶48 Nothing in
¶49 The majority reaches a contrary decision, agreeing with the Leaders that the Legislature suffers an institutional injury if
¶50 First, the fact legislative power is inalienable does not mean that delegation of that power immediately results in injury. Until that power is impermissibly exercised by another branch, a separation-of-powers violation does not occur, and the Legislature is not injured. See
¶51 The majority likens the delegation of legislative authority to a stolen credit card that the thief has not yet used. See supra ¶ 34. My
colleagues argue that just as the theft victim can sue the thief, the Legislature has standing to sue here even though the Commission has not exercised legislative authority. See id. Catchy, but the analogy falls apart upon inspection. Unlike the credit card thief, the Commission has not taken anything or violated a law. It was simply delegated authority by the People, acting in their legislative capacity. At most, the Commission is only poised to take legislative authority. Until the Commission exercises that authority, however, it is more like a person who is given an opportunity to steal a credit card but has not yet done so. And just as the would-be victim lacks standing to sue that thief, so do the Leaders here.
¶52 Tellingly, in cases the majority relies on, see supra ¶¶ 29–32, the Legislature, Governor, or bloc of representatives experienced an immediate, tangible injury as a result of the complained-of action and consequently possessed standing to challenge the action. See Ariz. Indep. Redistricting Comm‘n, 576 U.S. at 793 (loss of “authority to draw congressional districts“); Biggs v. Cooper, 236 Ariz. 415, 419 ¶ 13 (2014) (negation of bloc of representatives’ votes that were otherwise sufficient to defeat enactment of law); Brewer, 222 Ariz. at 237–38 ¶¶ 12–14 (loss of ability to veto “finally passed bills“); Forty-Seventh Legislature, 213 Ariz. at 486 ¶¶ 13–15 (2006) (loss of “right to have the votes of a majority given effect” after being overridden by a line-item veto). There is no such actual or threatened injury here because the Commission has not exercised any authority under
¶53 Second, granting standing here upsets the constitutional balance between the Legislature and the People, who share coequal lawmaking power. See
¶54 Third, the majority‘s analysis, with respect, is incautious. Although standing and ripeness are prudential doctrines, we should rigorously apply them in challenges by the Legislature against laws enacted by the People. The Voter Protection Act (“VPA“) enshrined in our Constitution reflects the People‘s will that the Legislature cannot repeal or easily change laws enacted by initiative or referendum. See
¶55 Here, the majority grants the Leaders automatic standing merely because they allege a potential, future violation of the separation-of-powers and non-delegation doctrines. This is imprudent. Doing so unlocks a door for future Legislatures seeking to make an end-run around the VPA in an attempt to void laws enacted by initiatives and referenda by merely alleging a plausible separation-of-powers or non-delegation violation based on theoretical, future events. Because this may thwart the People‘s will, we should require a tangible injury to the Legislature before granting it standing to challenge voter-enacted laws.
¶56 In sum, I conclude the trial court correctly refused to preliminarily enjoin