Issue: ALEC

An attorney for the Arizona Legislature is arguing to the state Court of Appeals that lawmakers – and not the courts – decide when they have to have open meetings. 

In new legal briefs, Tom Basile said the state Constitution gives the House and the Senate “an unalloyed authority to determine its own rules of procedure.” And that, he said, makes it impossible for a court to determine whether either has acted wrongfully or unlawfully by excluding members of the public from its proceedings. 

The arguments are similar to those his law partner, Kory Langhofer, made to a different judge in contending that lawmakers are within their power to determine, without judicial interference, whether they have to comply with other laws regarding which records are public. 

In that case, Maricopa County Superior Court Judge Michael Kemp rejected the idea that the Legislature was entitled to a blanket exemption that could not be reviewed by the courts. And Kemp pointed out that while lawmakers could have written public records laws to exempt themselves, they had not done so. 

But Basile, in arguments in this case to the state Court of Appeals, said that failure to carve out a legislative exemption is irrelevant. 

He said the House or Senate “may displace the Open Meeting Law entirely simply by enacting its own rules governing the noticing and conduct of meetings.” And in this case, he said challengers to the actions of some lawmakers have no private right of action to enforce either House or Senate rules. 

Basile also has something going for him that he did not in the records case: a prior ruling by Maricopa County Superior Court Judge Joseph Mikitish saying that the issue of whether it’s a violation for a quorum of lawmakers who attended a meeting is not for the courts to decide. 

The 2019 lawsuit filed by a coalition of rights groups accused state lawmakers of illegally meeting behind closed doors with special interests in a way that violates the law on open meetings. 

Attorneys for the organizations charged that there was a quorum of at least five legislative committees attending the annual conference of the American Legislative Exchange Council. That organization, funded largely by corporate interests, serves as a clearinghouse of sorts for proposed changes in state laws across the nation, changes that can wind up being formally adopted by the Legislature. 

It is that process, the lawsuit states, which shuts the public out of the process at the earliest stages of amendments to state law. More to the point, the fact that there is a quorum of a committee present means that the first action on the legislation effectively occurs behind closed doors. 

Challengers, including the Puente Human Rights Movement and the Mijente Support Committee, sought not only a ruling that the attendance violated the Open Meeting Law but wanted an injunction against future attendance at ALEC meetings by any quorum of any committee. 

Mikitish, in his ruling, said it is legally irrelevant if a quorum attends, even if that includes enough people who then could formally approve a change in state law once they get back to the Capitol. He said that’s not for courts to decide. 

That led to the current appeal. 

Basile told the appellate judges that his arguments boil down to a simple proposition. 

“Unless it contravenes some other provision of the state or federal constitutions, the legislature may structure its lawmaking proceedings in any manner it deems appropriate,” he wrote. And Langhofer said whether lawmakers opt to follow the law is beyond the reach of the courts. 

“Judicial attempts to police the legislature’s adherence to statutory directives or internal rules would entail an untenable foray into the domain of a co-equal branch,” he said. 

All that comes down to Basile’s argument that the only thing a court can look to is whether what lawmakers are doing violates the state Constitution. 

That document makes no reference to open meetings. Instead, he said, what it says is that each chamber shall determine its own rules of procedure. It also says that a smaller number of individual legislators – something less than the full body – may meet, adjourn from day to day, and compel the attendance of absent members. 

“Neither of these provisions mandates public access to legislative proceedings,” Langhofer told the appellate judges. Nor does it set any constraints or qualifications limiting the power of the Legislature to make its own rules. 

And he said the issue of whether the Legislature or individual lawmakers obey the Open Meeting Law is strictly a “political question” that cannot be addressed by courts as a co-equal branch of government. 

Finally, Basile said even assuming courts have the ability to oversee legislative compliance with the statute, a point he does not concede, the arguments by the challengers still fail. 

He pointed out that the law has a categorical exemption for “any political caucus of the legislature.” And in this case, he said, all 26 legislators who are alleged to have attended the 2019 ALEC meeting are Republicans. 

Basile told the judges the exemption makes sense to keep people from using the Open Meeting Law “to encroach on political associations and trespass into their internal discussions.” And he said that right of privacy exists even if the membership includes elected officials and even if their activities concern matters of public policy. 

The judges have not set a date to review the issue. 

Editor’s note: A previous version of this story erroneously identified Kory Langhofer as the Senate’s attorney who filed new legal briefs. The actual attorney was Tom Basile.