No Longer Off Limits: “Secret” Legislative Summits May Not Be So Secret Anymore

By Stefan Oakley.

In Puente v. Arizona State Legislature, the Arizona Court of Appeals considered whether a group of non-profit organizations and Arizona residents (together, the Appellants) could hold the state legislature accountable, in court, for an alleged breach of Arizona’s Open Meeting Law (the “OML”).

Appellants alleged that 26 members of the Arizona state legislature planned to attend a three-day summit hosted by the American Legislative Exchange Council (ALEC). Once there, the legislators would meet with lobbyists and other state lawmakers to draft model bills. Appellants asserted that this was an issue because the legislators said to be in attendance constituted a quorum of certain legislative committees and were thus potentially in violation of the OML.

Under Arizona law, a meeting is “the gathering, in person or through technological devices, of a quorum of the members of a public body at which they discuss, propose or take legal action, including any deliberations by a quorum with respect to that action.” The purposes of the OML include: maintaining accountability between public officials and the public at large, avoiding making official decisions in secret, protecting governmental integrity, and fostering a better-informed citizenry. The OML includes requirements for posting notices to the public, making agenda regarding the meeting accessible, and attending and recording meetings.  

The OML also has exceptions, one of which the Arizona legislature argued applied to them—an exemption for “any political caucus of the legislature.”

Initially, the superior court dismissed the Appellants’ complaint. The court found that the issue was a nonjusticiable political question and dismissed the case. The court did not decide the case, but instead abstained from the case based on Arizona’s separation of power principles.

On appeal, the court of appeals considered whether this was indeed a political question. If it was not, the court also had to decide whether the legislature was statutorily exempt from the OML when 26 of its members allegedly attended the summit.

The court of appeals found the case was not barred by the political question doctrine and that the legislature was not statutorily exempt from the OML in this instance. The court of appeals vacated the superior court’s judgment and remanded the case, allowing the Appellants’ lawsuit to move forward.

What is the political question doctrine and did appellants present a nonjusticiable political question?

The political question doctrine refers to cases when “there is ‘a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it.’” Simply put, some questions the court faces are questions either “entrusted solely to another branch of government or are beyond the competence of the judiciary to review.”  The doctrine is applicable both federally and in Arizona—especially so in Arizona, where the state constitution explicitly separates and distinguishes between the powers held by the executive, legislature, and judiciary (unlike the Federal Constitution, which is not so explicit). Despite its name, the political question doctrine does not mean the judiciary cannot decide cases with political ramifications, as it did in  Bush v. Gore or State of Arizona v. Tucson.

In this case, the superior court found the political question doctrine did not apply here, and therefore declined to hear the case. First, the court acknowledged that the legislature had the constitutional authority to determine its own procedural rules, without “any language limiting the Legislature’s authority to self-govern.” However, the court noted that Appellants did not allege that the Legislature violated their own procedural rules; the Appellants only sought the Legislature comply with the OML.

In fact, the court then noted that the legislature enacted the OML, and that it actually had “expressly subjected itself” to that law. The “Definitions” section of the law explicitly includes the legislature and its committees in the law’s purview. “By enacting a statute that expressly imposes open-meeting requirements on itself, the Legislature implicitly and necessarily acceded to judicial enforcement of those requirements.” Therefore, the court held the case was not subject to the political question doctrine as the legislature explicitly made itself subject to the OML, and, as such, made itself subject to judicial review in this instance.

However, the legislature argued that even if the Appellants’ complaint was justiciable, it was still deficient. Notably, it argued that the 26 legislators meeting at the ALEC summit were subject to the OML’s “political caucus” exemption, i.e., its non-applicability to “any political caucus of the legislature.”

Was the legislature otherwise exempt from the OML?

The court noted the term “political caucus” is not defined within the OML. However, the OML instructs interpreters to construe it liberally, which means, in this case, the “political caucus” exception should be construed narrowly. The court adopted a definition from an Arizona Attorney General Opinion: “[t]he ordinary meaning of ‘political caucus’ encompasses, within its terms, a meeting of members of a legislative body who belong to the same political party or faction to determine policy with regard to proposed legislative action.”

Applying that definition, the court noted that the alleged meeting with ALEC was said by the Appellants to include lawmakers from other states and lobbyists all gathered together to draft model bills. Because there were allegedly lawmakers from other states and corporate lobbyists present, the court said the meeting would fall outside of the political caucus exception.

However, the court was not unanimous in this regard. Judge Thumma dissented, believing that the “political caucus” exception applied in this case. He noted that Appellants seemingly conceded that the legislators’ meeting at the ALEC summit was a political caucus; their opening brief stated “[i]t is imperative that the [OML] be enforced against secret caucus meetings such as those that take place at the ALEC Summit.”

What this ruling might mean

It should be cautioned that the merits of the lawsuit have not actually been decided.  Thus, there is no answer to whether the legislature actually violated Arizona’s OML. However, the legislature, at least in this instance, was subject to it.

Practically, Puente is perhaps a warning shot to legislators, no matter their political persuasion, to take into account Arizona’s OML when going on legislative retreats or summits. The court of appeals has now narrowed the  definition of a “political caucus,” concluding “the term does not apply when legislators of one political party gather with lawmakers from other states and corporate lobbyists to draft legislation.” This suggests summits that involve any other parties outside of the political caucus may also forgo exceptions under the OML.

"Arizona Capitol building" by Gage Skidmore is marked with CC BY-SA 2.0.

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By Stefan Oakley

J.D. Candidate 2023

Stefan is a 2L Staff Writer from Phoenix, Arizona. However, he grew up in Derbyshire, United Kingdom and moved to the U.S. in 2015. Stefan enjoys reading and spending lazy weekends with his wife, Cameron, and their two mischievous cats, Jane and Maggie.

The opinions expressed herein are those of the individual contributors to the ASLJ Blog and should not be construed as the opinions of the Arizona State Law Journal or the Sandra Day O’Connor College of Law at Arizona State University.