Activists challenge court ruling on open meetings laws for legislators


A coalition of rights groups and their members is trying to overturn a trial judge’s ruling which essentially says that the Arizona Legislature is subject to the state’s Open Meeting Law that it adopted only when it chooses to do so — and people can’t sue over violations.

Attorneys with the Peoples Law Firm want the Arizona Court of Appeals to rule that Maricopa County Superior Court Judge Joseph Mikitish erred when he concluded it really doesn’t matter if a quorum of any legislative committee attends meetings 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 legislators here.

But Mikitish, in a seven-page ruling, said it appears to be legally irrelevant even if there is a quorum of any given committee, even if there are  enough people who then could actually formally approve a change in state law once they got back to the Capitol. He said that’s not for courts to decide.

The issue, according to the plaintiffs, is more than academic.

Sandra Castro, an activist with the Puente Human Rights Movement, one of the groups involved in the lawsuit, said that SB 1070, the historic 2010 Arizona law aimed at illegal immigration, came directly from a draft crafted at an ALEC meeting.

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

An ALEC spokesman told Capitol Media Services that isn’t correct, saying SB 1070 was already adopted in Arizona before it became part of the ALEC agenda as a model for other states. Anyway, he said, ALEC no longer is involved in immigration issues.

Jamil Naser of the Arizona Palestine Solidarity Alliance complained about ALEC’s role in crafting what became a 2016 state law which sought to deny public contracts to firms that refused to avow they would not boycott Israel or companies that do business there. That law was later struck down by a federal judge though legislators subsequently adopted a slightly different version that has yet to be challenged.

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

In filing suit against the Arizona Legislature, the plaintiffs asked Mikitish to declare that the meetings with a quorum violate the Open Meeting Law. More to the point, they wanted him to enjoin similar attendance by lawmakers at ALEC meetings that don’t comply with that law.

But the judge in his ruling said he can’t do that.

It starts, Mikitish said, with a provision of the Arizona Constitution which says each chamber gets to “determine its own rules of procedure.”

Beyond that, the judge said courts have to avoid what he said are political questions where there is no “judicially discoverable and manageable standards” for resolving the issue.

“In this case, the constitutional delegation is broad: Each house is to determine its own rules of procedure,” Mikitish wrote.

“Given the Legislature’s plenary authority in this arena, there appears to be no judicially manageable standard for determining what should be included in those legislative rules of procedure, including whether there should be a requirement for public meetings in the settings challenged by the plaintiffs,” the judge continued.

In fact, Mikitish said, the constitutional power of the legislature to create its own rules contemplate that “a smaller number” than a quorum of the full House and Senate can meet “in such manner and under such penalties as each house may prescribe.”

The appellate court has not set a date to consider the issue.


Attorney argues courts can’t force lawmakers to follow open meeting laws

 In this April 15, 2020, file photo, the blur of car lights zip past the Arizona Capitol as the dome is illuminated in blue as a symbol of support for Arizona's frontline medical workers and emergency responders battling the coronavirus in Phoenix. (AP Photo/Ross D. Franklin, File)
In this April 15, 2020, file photo, the blur of car lights zip past the Arizona Capitol as the dome is illuminated in blue as a symbol of support for Arizona’s frontline medical workers and emergency responders battling the coronavirus in Phoenix. (AP Photo/Ross D. Franklin, File)

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. 


Josselyn Berry: A progressive messenger from a conservative Republican household

Cap Times Q&A

Josselyn Berry is the 28-year-old executive director of ProgressNow Arizona, an advocacy group that she said “acts like a communications hub for the state’s progressive infrastructure.” She said ProgressNow Arizona aims to hold all politicians, regardless of party affiliation, accountable, while simultaneously pushing back on “right-wing messaging” within the state.

Berry, who did a college internship with the Arizona Capitol Times, graduated from Arizona State University’s Walter Cronkite School of Journalism and Mass Communication in 2013, but had difficulty with the requirement to be “unbiased” as a journalist, and instead decided to pursue a more politically driven career path.

Josselyn Berry, executive director of ProgressNow Arizona (Photo by Kendra Penningroth, Arizona Capitol Times)
Josselyn Berry (Photo by Kendra Penningroth, Arizona Capitol Times)

If you could fix one issue in Arizona with a snap of your fingers, what would it be?

Oh god, there’s so many. I’m a woman, I’m a young woman, and I am just tired of seeing the constant attacks on Planned Parenthood and on reproductive rights, and the lack of science based sex-ed, the lack of programs for teenagers. I’m really tired of seeing the stranglehold that lobbyists like Cathi Herrod have on our Legislature, and on our governor. It’s really frustrating to see people in office that are supposed to represent their constituents instead listening to a special interest that doesn’t have everyone’s best interest at heart.

If you had to describe the Arizona legislature with one emoji, what emoji would that be, and why?

I don’t know. Maybe the money bag emoji? Because I feel like there’s a lot of corruption in our Legislature. We have some legislators that own charter schools, or sit on the board of charter schools, and they’re allowed to make legislation that helps charter schools. Or we see ALEC’s influence at the Legislature. We have Debbie Lesko, who is the chair at ALEC. She’s at an ALEC conference in Denver today. So, we see bills that are pushed at these ALEC conferences that then show up in Arizona. So, I feel like there’s a lot of corruption at the Legislature. It just feels like a lot of money changing hands.

Do you have a least-favorite politician in the legislature?

Probably Bob Thorpe. I just feel like he’s constantly attacking students in his district who want to vote by trying to pass bills that would prevent students from voting. He refuses to hold town halls for his constituents. Instead, he goes on conservative talk shows, and I feel like he’s really holed himself away from his constituents and is refusing to speak with them. Come on! Just come out of your office and meet with people. They elected you to the office. You should have the courage to talk to them and stand up for the bills and the values you believe in, and if you’re not, why are you there?

What is one thing you wish people understood about advocacy groups like yours?

It’s not that we’re trying to manipulate people. I’m not trying to trick people into thinking a certain way, or doing a certain thing. I just am very passionate about making Arizona a better place and the way that I think we do that is through progressive policies. And, obviously, not everyone is going to agree with that, but I think that I am here trying to make a better world for our community, and I’m not sitting here plotting about how I can destroy people’s lives. I genuinely want to make Arizona a better, more equitable place for everyone.

I know that you were originally born in California, so do you think Arizona or California is better?

That’s a dangerous question. I’ve lived in Arizona for 20 years now, so it definitely feels like home. I do love Arizona. I feel like the people here are a bunch of fighters. I feel like the people here are scrappy, really passionate, and they feel very strongly about Arizona and there’s a lot of Arizona pride, and I really love that.

What goals do you have for the next five or ten years, personally or professionally?

You know one of my passions is definitely, this always sounds weird, but I really love birds. So, I would really love to one day be a communications director for a conservation or wildlife advocacy organization, and also just owning a bunch of birds.

So, why birds?

My grandmother got me a lovebird when I was in middle school. She got it for me when it was really young and hand-fed, so it bonded to me. I think they’re just really sweet, and cuddly, and I love hanging out with my bird, Paloma. She flies around my house. She’s always on my shoulder, on my head, and we just hang out and it’s amazing.

Are you close with your family, and how do they feel about you advocacy work?

I’m a little bit close with them. My family is actually – they’re mostly conservative Republicans and they voted for Trump. My mother supports Trump, but she is also a union worker and very pro-Planned Parenthood, which is very interesting.  I grew up in a pretty Republican household, and the reason I think I went opposite of that is maybe some just typical teenage rebellion. But I think also just seeing sometimes the way they viewed the world didn’t really feel right in my heart. It didn’t feel generous. It felt like there was a lot of anger in their worldview, and I didn’t feel like I reflected that. So, when I started to work in politics, I think it upset my dad more than anyone else. My mother’s always saying, “I don’t always agree with you, but you’re doing what you believe in, and I love you and I respect you so much.” And my dad will sometimes either poke fun at me, or poke fun at the work I’m doing and I’ll try to talk to him about it, but I’ve just learned it’s better not to talk about it. So, now at family gatherings, we just don’t talk about my work.

Justice Bolick says attendance at political dinner wasn’t improper

Gov. Doug Ducey, right, speaks with Rep. Shawnna Bolick, R-Phoenix, and Arizona Supreme Court Justice Clint Bolick Aug. 15 before a dinner at the American Legislative Exchange Council conference in Austin, Texas. Clint Bolick was criticized for attending the dinner at the political conference. PHOTO FROM TWITTER
Gov. Doug Ducey, right, speaks with Rep. Shawnna Bolick, R-Phoenix, and Arizona Supreme Court Justice Clint Bolick Aug. 15 before a dinner at the American Legislative Exchange Council conference in Austin, Texas. Clint Bolick was criticized for attending the dinner at the political conference. PHOTO FROM TWITTER

An Arizona Supreme Court justice defended himself August 20 from a storm of criticism after being spotted at a conference known to push conservative legislation.

Gov. Doug Ducey tweeted a photo on August 15 showing him with Justice Clint Bolick and his legislator wife, Shawnna Bolick, R-Phoenix, at a conference held by the American Legislative Exchange Council, or ALEC, in Austin, Texas.

While Bolick did not actually attend the conference, he did attend a dinner with his wife.

The justice said he attended the ALEC dinner as his wife’s guest, but acknowledged that ALEC paid for his meal.

“Nothing at the dinner would remotely compromise my impartiality or create a reasonable appearance otherwise,” Clint Bolick said.

Critics jumped on the tweet, questioning whether Clint Bolick’s appearance there – albeit with his wife – and at a separate event hosted by school choice advocates in Austin, was a conflict.

Chris Herstam, a political consultant who left the GOP a few years ago, threw the first stone.

“I never thought I’d see a sitting AZ Supreme Court Justice standing w/his GOP legislator wife & the gov. who appointed him at an ALEC annual meeting. ALEC & the wife write the laws, Ducey signs them into law & Bolick rules on them. Something is very wrong with this picture,” Herstam tweeted, receiving more than 170 retweets and 300 likes.

Several responses poured in, including one from Brian Garcia, a law student who worked for U.S. Sen. Kyrsten Sinema when she was in the U.S. House. He tweeted that Bolick’s duty to avoid the appearance of impropriety “goes out the window.”

Bolick said there was nothing improper about his talk at a school-choice education forum billed as “A Conversation with Justice Bolick,” which focused on experiences and strategies regarding litigating school choice cases leading up to a 2002 U.S. Supreme Court case stemming from a school choice debacle in Ohio.

“I was also asked about my transition from public interest law to the bench, my judicial retention election, the comparison of judicial elections in Texas and Arizona, and my tattoo,” Bolick said, referring to the scorpion tattoo he has on his finger.

He said judges give talks at events like that all the time.

“My colleagues and I all speak frequently at public forums and attend conferences at which positions are argued or taken on public policy or legal issues, including state bar functions, the State of the State speech, community forums, and even our annual judicial conference,” Bolick said in an email

U.S. Supreme Court justices also tend to abide by the same practices, he said.

“We are all mindful of our ethical responsibilities and can separate what we hear in a public forum from our duty to decide cases impartially,” he said, adding that as long as they don’t comment on legal issues that are likely to appear before them on the court, or express views on their ongoing cases, they’re not breaking any rules or endangering their neutrality.

The Judicial Code of Conduct states that a judge shall not be swayed by partisan interests; shall uphold independence of the judiciary; shall avoid impropriety and the appearance of impropriety; shall not engage in political or campaign activity that is inconsistent with the independence, integrity, or impartiality of the judiciary; and a judge shall conduct the judge’s personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office.

ALEC is partially funded by the Koch Brothers and its conference is held for conservative state legislators to coach them into pushing model conservative bills.

Mark Harrison, an attorney who specializes in attorney ethics, said the mere attendance at the ALEC conference is not a violation of the Judicial Code of Conduct unless the justice expressed views or participated in activities.

This isn’t the first instance that accusations of breaking that clause of the code of ethics have been levied against Bolick. It was a common critique of his political behavior when he texted Ducey to name Bill Montgomery as John McCain’s replacement in the Senate last year.

Shine a light on secret meetings of ALEC

Deposit Photos

In 2019, I was one of a group of women who went to the state House in Phoenix to testify against a proposal to open a new women’s prison. We’d practiced for hours, believing our voices could make a difference. But in the end, Rep. Regina Cobb, R-Kingman, shut down all input from the public, denying us the opportunity to address lawmakers.

Analise Ortiz

This was one of the experiences that inspired me to run for the Arizona House of Representatives. Growing up in Arizona, I recognized that many state leaders weren’t looking out for us, but I didn’t understand why. I know now that the Legislature is a haven for the rich and powerful, including corporations from out of state.

Nothing demonstrates the endemic corruption in Phoenix more vividly than the power of the American Legislative Exchange Council (ALEC), the pay-to-play operation that collects hefty fees from corporations in exchange for private access to state lawmakers. ALEC is a national group, but Arizona has long been a stronghold. It was a secret ALEC meeting in 2009 that produced SB1070, the infamous bill that allowed law enforcement to racially profile any Latino. Today’s GOP leaders are ALEC stalwarts. Senate President Karen Fann, R-Prescott, for example, is ALEC’s national chair.

Yet, it is also here in Arizona that ALEC faces a challenge from citizens in the form of a lawsuit that went before the state Supreme Court on November 15. The case argued that 26 lawmakers violated our state’s Open Meeting Law by attending a 2019 ALEC conference in Scottsdale. Because the lawmakers composed quorums of committees, the suit says, the secret deliberations and drafting of laws amounted to unlawful decision-making by a public body.

The law, it seems, is on the side of the plaintiffs. It states that “any meetings of any public body shall be public meetings and all persons so desiring shall be permitted to attend.” But whether the legal challenge succeeds, they’ve done us a service by exposing this dark, seedy corner of our political system.

There’s a reason that lawmakers and their corporate sponsors don’t want the press or the public to see what goes on in ALEC meetings. Most people would be disgusted by the spectacle of lobbyists and lawmakers wining and dining in lavish resorts while they craft legislation that often causes harm to the most vulnerable, hardworking Arizonans.

Lawmakers introduce “model bills,” which other ALEC-affiliated lawmakers then push in other states. ALEC claims that about one-third of all state legislators in the country are members. Between 2010 and 2018, more than 600 of ALEC’s bills became law across the country. Inevitably, the harm done by laws birthed at secret ALEC meetings – from voter ID laws to Stand Your Ground laws to Right-to-Work laws – falls most heavily on working class people and communities of color.

Lawmakers of both parties purport to oppose “special interests” or “the establishment” or “elites.” But as long as we allow groups like ALEC such influence, this is just lip service. Likewise, both Democrats and Republicans lament the state of our democracy, for different reasons, but there’s no greater threat to our democracy than the corporate influence-peddling that takes place every day.

It’s time to shine a light on the secret meetings of corporate lobbyists and lawmakers. Better yet, we should make sure lawmaking takes place not in back rooms and private resorts but in the public square. As it stands, out-of-state corporate interests are getting their way because Arizonans don’t have a say.

Arizona State Representative-elect Analise Ortiz will serve the people of Maryvale and Glendale in Arizona’s 24th Legislative District. She is a former journalist with a background in criminal justice reform advocacy.












The Breakdown: Big money, no whammies

The Breakdown by the Arizona Capitol TimesHas your inbox been flooded with pleas from Dem PACs and fundraising groups? Are you getting a sense of 2018 deja vu? It’s no coincidence — many of the big spenders that came en masse to tight races last cycle have returned, gearing up for a 2020 election that has huge implications for Arizona Democrats. 

The NCSL was here last week to discuss redistricting, which will be a hot button issue come next year.

And we have the latest update on the Paul Petersen saga, his suspension appeal hearing happened last Wednesday and his suspension now remains in limbo.


Don’t forget to subscribe to The Breakdown on iTunes and Stitcher.


Music in this episode included “Creative Minds,” “Funky Element” and “Energy” by Bensound.

The Breakdown: Runnin’ dirty

Clean Elections Commission logo620Thousands of Arizona women could have to choose between paying more for health care or driving long distances to receive it after Planned Parenthood withdrew from a federal funding program.

A Supreme Court justice raised eyebrows when Gov. Ducey tweeted a photo of him at a conservative conference.

And Democrats are running dirty, ditching Clean Elections funding to maintain access to the party’s list of voters in 2020.


Don’t forget to subscribe to The Breakdown on iTunes and Stitcher.


Music in this episode included “Creative Minds,” “Funky Element” and “Energy” by Bensound.