STATE оf 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.
942 P.2d 428 | 189 Ariz. 269
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,
OPINION
MOELLER, Justice.
FACTS
In 1994, the Arizona Legislature created the Arizona Constitutional Defense Council (CDC).
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
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 Depаrtment 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 enаcted 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.
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
JURISDICTION
This court has original jurisdiction over the issuance of injunctions and other extraordinary writs to state officers.
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 оbligation to uphold the Arizona Constitution, and two statutory grounds—
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.”
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.
The Attorney General first argues that, as the state‘s chief legal officer, he has a duty “not only to represent his client agencies, but also the duty to uphold the Arizona Constitution.” He states that he has “a recognized affirmative duty to challenge statutes.” Therefore, he argues, this duty to uphold the constitution gives him an independent ground for standing.
To the extent the Attorney General is arguing that the Arizona Constitution itself grants him independent standing here, we disagree. The Arizona Constitution creates the office of Attorney General but does not undertake to describe the duties of the office. Instead, it merely provides: “The powers and duties of ... [the] Attorney General ... shall be as prescribed by law.”
Although the court of appeals held that the Attorney General has standing to challenge the constitutionality of a statute, that holding was based on a statutory, rather than a constitutional, foundation. See Fund Manager, 161 Ariz. at 354, 778 P.2d at 1250. In Fund Manager, the Attorney General brought an action under
III. The Attorney General and A.R.S. § 35-212
What we have already said leads necessarily to a conclusion that the Attorney General has standing to maintain this action under section 35-212. Under that statute, the Attorney Generаl “in his discretion may bring an action in the name of the state to enjoin the illegal payment of public monies.”
We have previously discussed the Fund Manager case in rejecting the Attorney General‘s contention that the Arizona Constitution independently authorizes him to maintain this action. See supra, Standing of the Attorney General, part II. But although Fund Manager is against the Attorney General‘s contention on that point, it supports his argument under section 35-212(A).
In Fund Manager, the Attorney General, Robert Corbin, brought an action against a law firm under
The court of appeals, in a portion of its opinion later approved by this court, see
CDC nevertheless argues that the Attorney General lacks standing under
Lastly, CDC argues that giving the Attorney General the broad power to сhallenge the expenditure of public funds based on the unconstitutionality of a statute will give the Attorney General a “global mandate to sue” and will defeat the proposition that the Attorney General does not have common law powers in Arizona but only statutory powers. We are unpersuaded. Had the constitutionality of the CDC statute been called into question in litigation not initiated by the Attorney General, he would have to be notified and would have an unquestioned right to participate in the litigation. See
IV. The Attorney General and A.R.S. § 12-2041
Under
If a defendant in a quo warranto action is “adjudged guilty of usurping or intruding into or unlawfully holding an office, franchise or privilege, such defendant is guilty of a petty offense and shall be excluded from the office, franchise or privilege.”
The Attorney General alleges that the members of CDC are unlawfully exercising their office because the legislation creating the office is unconstitutional. In this respect, this case is similar to Ahearn v. Bailey, 104 Ariz. 250, 451 P.2d 30 (1969). In Ahearn, petitioner (who was not the Attorney General) argued that respondents did not have the right to hold office as members of the Industrial Commission of Arizona because the legislation creating their positions was unconstitutional. The Legislature had changed the structure of the Industrial Commission from three to five members. 104 Ariz. at 252, 451 P.2d at 32. In so doing, the Legislature also shortened the terms of the existing commissioners, which had the effect of unseating the incumbents, thereby violating separation of
In the present case, the Attorney General seeks to prohibit the members of CDC from exercising their purported powers because CDC was created by an unconstitutional statute. Because the relief requested is within the statutory authority of the Attorney General under the quo warranto statute,
SEPARATION OF POWERS
I. CDC Is a Legislative Body
The Attorney General‘s challenge is based on the separation of powers doctrine.3 The Arizona Constitution, written after generations of experience and experimentation under the United States Constitution, spells out the separation of powers doctrine even more specifically than does the national document.
The Arizona Constitution contains a clause specifically dealing with the separation of powers and precluding any department of government from exercising the powers of any other department. Article III provides:
The powers of the government of the State of Arizona shall be divided into three separate departments, the Legislative, the Executive, and the Judicial; and, except as provided in this Constitution, such departments shall be separate and distinct, and no one of such departments shall exercise the powers properly belonging to either of the others.
The roles of each branch of government in Arizona are, therefore, separate and distinct. “The legislature has the exclusive power to declare what the law shall be.” State v. Prentiss, 163 Ariz. 81, 85, 786 P.2d 932, 936 (1990). In contrast, the executive branch‘s duty is to carry out the policies and purposes declared by the Legislature. See Pioneer Trust Co. v. Pima County, 168 Ariz. 61, 65, 811 P.2d 22, 26 (1991) (citing Lincoln Property Co. No. 41 v. Law, 45 Cal.App.3d 230, 234, 119 Cal.Rptr. 292, 294 (1975)). As this court has previously had occasion to observe: “Nowhere in the United States is this system of structured liberty [of separation of powers] more explicitly and firmly expressed than in Arizona.” Mecham v. Gordon, 156 Ariz. 297, 300, 751 P.2d 957, 960 (1988).
With these principles in mind, we examine
This court has emphasized that separation of power between the branches of government requires that “those who make the law be different from those who execute and apply it.” Matter of Walker, 153 Ariz. 307, 310, 736 P.2d 790, 793 (1987). Because Arizona‘s Constitution, unlike the United States Constitution, does not contain an appointments clausе, a law is not invalid merely
CDC is composed of three voting members and two advisory members: the voting members consist of the Governor or his designee, one member appointed by the Speaker of the House of Representatives, and one member appointed by the President of the Senate.
Clearly, the Legislature has maintained control of CDC. The Governor has a single appointment. The Legislature, acting through the President of the Senate and the Speaker of the House, appoints the controlling majority of the voting members, who serve at the pleasure of the appointing persons. In addition, two other legislators serve as advisory members of CDC. The only oversight provided for expenditures of CDC is by the Joint Legislative Budget Committee, a legislative body. We conclude that CDC is a legislatively created and controlled body, and that it was intended to be such.
II. The Applicable Legal Test (Hancock) and Its Elements
The question, then, is whether CDC, a legislative body, exercises an executive function. The court of appeals has established a test to determine if one branch of government “is exercising ‘the powers properly belonging to either of the others.‘” J.W. Hancock Enterprises v. Arizona State Registrar of Contractors, 142 Ariz. 400, 405-06, 690 P.2d 119, 124-25 (App.1984) (quoting
According to
CDC next argues that it does not perform an executive function because, rather than enforcing laws enacted by the Legislature, it is “defending against the federal government‘s unlawful intrusion in the self-governmental authority of the State.” But the executive branch of government has more responsibilities than merely to enforce laws enacted by the Legislature. It is responsible for сarrying out the policies and purposes of the Legislature. One of those purposes, as stated in
B. Degree of Control by the Legislature in the Exercise of the Power
The next prong of the Hancock test is whether the Lеgislature‘s involvement is a cooperative venture or a coercive influence. Hancock, 142 Ariz. at 405, 690 P.2d at 124. We have already pointed out that the Legislature retained dominant control over CDC. See supra Separation of Powers, part I. The 1996 amendments were clearly intended to enhance the Legislature‘s control and remove the Attorney General or any representative of the executive from any semblance of control.
C. The Objective of the Legislature
When evaluating the objective of the Legislature, the court in Hancock asked, “Is the intent of the Legislature to cooperate with the executive by furnishing some special expertise of one or more of its members or is the objective of the Legislature obviously one of establishing its superiority over the executive department in an area essentially executive in nature?” Hancock, 142 Ariz. at 405, 690 P.2d at 124 (quoting Bennett, 547 P.2d at 792). Again, the Legislature‘s actions through its amendments to
CDC argues that appointing two legislative members as advisory members of CDC does not violate separation of powers because the members are not necessary for a quorum and have no voting rights. However, although the members have no voting rights, they still have the ability to influence
D. The Practical Consequences of the Action
In Hancock, the court held that a fourth consideration for determining whether a statute violated separation of powers could be “the practical result of the blending of powers as shown by actual experience over a period of time where such evidence is available.” 142 Ariz. at 405, 690 P.2d at 124 (quoting Bennett, 547 P.2d at 792). Although the amendments had been in effect for only a few months at the time the petition for speciаl action was filed, conflict already existed. CDC claims that no real conflict exists because it is representing the Department of Corrections, its client, with its approval. The Attorney General responds that CDC is responsible for the conflict by undertaking to represent a state agency, whose representation is the responsibility of the Attorney General.
Under
E. Balancing the Hancock Factors
CDC performs an executive function, yet is controlled by members appointed by representatives of the Legislature. This legislаtive control is in accord with the intent of the Legislature in amending
ARTICLE V ISSUE
The Attorney General also argues that
CONCLUSION
ZLAKET, C.J., FELDMAN, J., and RUTH V. McGREGOR, Chief Judge, concur.
JONES, V.C.J., did not participate in this matter; pursuant to
I agree with the court that there is a separation of powers problem here and write separately to state my understanding of the limited nature of our holding. I also write to express my disagreement with the court‘s resolution of the standing issue.
1. The problem with this statute is that it creates an entity that performs essentially executive functions but remains subject to legislative control. The absence of set terms or other removal provisions for members of the CDC provides the Legislature indirect, yet substantial control over the members it appoints. The same problem existed before the statute was amended. This is the heart of the case. Ante, at 435-436.
The separation of powers problem would not have arisen had the statute accorded the Executive Branch of government the majority of appointments on the commission. The Attorney General acknowledged this at oral argument. In the alternative, the statute could have allowed the Legislature to make a majority of the appointments, but given them secure tenure. This alternative would not create an appоintments clause violation because, as the court notes, there is no appointments clause in the Arizona Constitution.
2. While I believe there is standing in this case, I do not believe there is standing under either of the statutes upon which the court relies. I believe that the scope of
By extеnding the scope of the remedy under § 35-212 to support standing here, the court greatly expands the scope of taxpayer suits under
Nor do I believe there is standing under a quo warranto action. An action under
Now having said all of this, I do believe the Attorney General has standing in this case.
The purpose of the standing requirement is to ensure that there is a true controversy between the parties and potential harm-in-fact. Where, as here, the Attorney General brings an action involving the scope of his office qua office, and where, as here, a separation of powers claim is accompanied by a claim under article V, § 9 of the constitution, standing exists. This is true even though we do not reach the merits of the article V argument. Its good faith assertion ensures standing. Nor would my view give the Attorney General carte blanche to bring actions on behalf оf the state without a true client. He would be limited to those instances in which his office is the true client and where he is attempting to vindicate the interests of his own office, not those of the public.
In all other respects, I concur in the opinion and the judgment of the court.