PHOENIX — State lawmakers cannot ignore open meeting laws based on their claims that the law does not apply to them, the Arizona Court of Appeals ruled this week.

In a split decision on Tuesday, the three-judge panel rejected arguments from lawyers for the Legislature that they need to make their own rules. Appeals Judge Jennifer Campbell, writing for the majority, said there was no evidence that when lawmakers approved the laws they ever intended to exempt themselves.

Potentially more important, Campbell rejected claims that constitutional provisions for the separation of powers between the three branches of government prevent the courts from deciding whether what the legislature does is legal.

“By passing laws that expressly impose open assembly requirements on themselves, the legislature has implicitly and necessarily accessed the judicial enforcement of those requirements,” she wrote, although he retained the power to adopt other rules of procedure.

There was no immediate response from House Speaker Rusty Bowers, R-Mesa, or Senate Speaker Karen Fann, R-Prescott.

The 2020 lawsuit brought by a coalition of rights groups came after the organizations accused 26 Republican lawmakers — a quorum of at least five legislative committees — of attending the American Legislative Exchange Council’s annual conference. . This group, funded largely by commercial interests, serves as a clearinghouse of sorts for proposed changes in state laws across the country, changes that may end up being formally passed by the legislature here.

It is this process, the lawsuit states, that shuts the public out of the process from the earliest stages of changes to state law. Specifically, the fact that there is a quorum of a committee present means that the first action on the legislation is effectively happening behind closed doors.

Maricopa County Superior Court Judge Joseph Mikitish dismissed the case.

He concluded that it was legally irrelevant even if there was a quorum of a given committee, even if there were enough people who could then formally approve a change in state law once back to the Capitol. Mikitish said it was not for the courts to decide.

Campbell, however, said those are precisely the matters that fall within the jurisdiction of the judiciary.

She acknowledged an argument by lawmakers that there is an exception to open meeting laws for a “political caucus.”

The judge said, however, that this is limited to things like reviewing party policy with respect to a particular legislative issue. Specifically, she said the challengers’ allegations charged not that this was an illegal caucus to discuss politics, but that lawmakers “meet and collaborated in secret with dozens of lawmakers from around the world.” other states and hundreds of “corporate lobbyists” to draft sample invoices.

Campbell was also unimpressed with lawmakers’ arguments that they took no “legal action” at the ALEC meeting.

She pointed out that this phrase means not just a roll-call vote, but any “deliberation of a majority of a public body on any matter votable by that body”.

What makes this significant, Campbell said, is that the challengers cited what they said was a history of what happens at ALEC meetings that ends up being incorporated, verbatim, into legislation. presented and approved at the Arizona Capitol.

For example, Sandra Castro, an activist with the Puente Human Rights Movement, one of the groups involved in the lawsuit, said that SB 1070, Arizona’s landmark 2010 illegal immigration law, came directly from a draft developed at an ALEC meeting.

Parts of that law have since been struck down by federal courts. But some provisions are still intact, including the requirement for police, where reasonable, to check the immigration status of those they have arrested for any other reason.

An ALEC spokesperson later told Capitol Media Services that was not correct, saying SB 1070 had already been adopted in Arizona before it became part of ALEC’s agenda as a model for other states. Either way, he said, ALEC is no longer involved in immigration matters.

And Jamil Naser of the Arizona Palestine Solidarity Alliance complained about ALEC’s role in crafting what became a 2016 state law that sought to deny public contracts to companies that refused to confess. that they would not boycott Israel or companies doing business there. This law was later struck down by a federal judge, though lawmakers later passed a slightly different version that has yet to be challenged.

Other complaints centered on what they said was ALEC-inspired legislation to increase criminal penalties and build more private prisons.

All of this, Campbell said, allows the challengers to argue that it was “reasonably foreseeable that the model bills drafted at the (ALEC) summit … would come to the legislature for a vote.” And she noted that the 2020 ALEC meeting had just taken place when the lawsuit was filed, and the challengers sought to bar all of those lawmakers from attending.

“We conclude that the (challengers) have alleged sufficient facts from which a reasonable inference could be drawn that lawmakers violated the open meeting law,” Campbell wrote. And that, she said, means the legislature can’t dismiss the case, at least not right now.

Appeals Judge Samuel Thumma dissented, saying he accepted arguments that GOP lawmakers’ attendance at the ALEC meeting fell within the definition — and exception for — of a political caucuses.


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