Arizona Court of Appeals Division One Holds That Although Open Meeting Statute Applies to Arizona Independent Redistricting Commission and Legislative Privilege Does Not Shield Communications Regarding Hiring of Mapping Consultant, Attorney General and County Attorney Are Enjoined From Continuing Investigation Into Alleged Open Meeting Violations Because Investigation Lacked a Reasonable Basis.

The Arizona Independent Redistricting Commission (“AIRC”) is a constitutional entity with powers and duties set forth in Article IV, Part 2, Section 1 of the Arizona Constitution.  Section 1(13) states that all action of the ARIC requires “three or more affirmative votes” and that “[w]here a quorum is present, the [AIRC] shall conduct business in meetings open to the public.” 

Arizona’s open meeting statute, A.R.S. §§ 38-431 to -431.09, (the “OML”) contains a set of open-meeting regulations that are generally applicable to public bodies.  The statute also gives the Attorney General various powers to investigate alleged violations of the OML, including the ability to issue civil investigative demands (“CIDs”) for testimony under oath and production of documents. 

In August 2011, the Arizona Attorney General issued CIDs to the commissioners of the Arizona Independent Redistricting Commission (“AIRC”) purportedly to investigate alleged violations of the OML.  The dispute concerned communications that allegedly occurred during the process of hiring a mapping consultant.  Some commissioners refused to comply; the Attorney General filed a petition for enforcement of the CIDs. 

The AIRC then filed a complaint seeking an injunction to stop the investigation and a declaration that (1) the OML did not apply to the AIRC because it was governed by a separate constitutional open meeting provision and (2) the CIDs sought information protected by legislative privilege.  The Attorney General moved to dismiss, arguing that the AIRC lacked capacity to sue in this context.  After consolidation and cross-motions for summary judgment, the superior court awarded the AIRC and the commissioners summary judgment.  In addition to declaratory relief, the superior court enjoined the investigation because the State failed to show that there was “reasonable cause to believe there may have been a violation” of the OML.  In its final signed judgment, the superior court found that “there is no basis for the prosecution of the investigative demands.”  The State appealed.

The Court of Appeals reversed some of the lower court’s legal conclusions but affirmed the injunction against the investigation, holding that neither the Attorney General nor the County Attorney could continue the earlier investigation.

First, the Court affirmed that the AIRC has capacity to sue, rejecting the State’s argument that the court lacked jurisdiction to entertain the AIRC’s complaint.  Because the constitution specifically grants the AIRC the ability to sue in some specific circumstances, “the constitution necessarily contemplates the [AIRC’s] capacity to sue and be sued.”  Furthermore, the commissioners unquestionably had standing and capacity to sue, and they joined in the AIRC’s motions.

Second, the Court held that the OML applied to the AIRC in general and that any specifically incompatible provisions would be severable.  In general, the legislature is authorized to pass laws on any issue unless the constitution expressly or implicitly prohibits the legislative act in question.  The AIRC argued that the constitution implicitly limited the legislature’s power to subject the commission to the OML for several reasons, all of which the Court rejected. 

The Court held that it did not matter that the constitution did not expressly grant the legislature authority to regulate the AIRC.  Although the constitution makes other commissions (e.g., the Corporation Commission) expressly subject to legislation, the comparison with those different commissions was “minimally informative.”

Furthermore, AIRC contended that the constitution implicitly limited the legislature’s power because the constitution makes the provisions governing the AIRC “self-executing,” the constitution provides the AIRC with its own separate open meeting provision, and the primary purpose of the AIRC was to make the redistricting process independent from the partisan legislature.  See Ariz. Const. art. IV, pt. 2, § 1(12), (17).  The Court reasoned that the OML does not “purport to inhibit or interfere with the redistricting process, which is the core function of the [AIRC] and purpose for its independence from the legislature.”  Specifically, the Court held that complying with the OML’s various requirements for public meetings would not unduly burden the AIRC’s independence or its ability to complete the redistricting process. 

Moreover, the Court did not view the OML as incompatible with the constitutional open meeting clause.  Although the provisions use different words, the Court held that the constitution was as broad or broader than the statute.  Thus, when the AIRC complies with the constitution it also complies with the statute.  For example, the Court interpreted Section 1(13)’s requirement that the AIRC “conduct business” in public meetings to be at least as broad as the OML’s requirement to take “legal action” in public meetings.

The AIRC also contended that the OML’s enforcement and penalty provisions could not apply to the AIRC.  As a general matter, the Court held that “adding potential penalties . . . does not directly affect the core purpose and function of the [AIRC] to create a redistricting plan.”  Thus, because the penalty provisions “relate only to tangential aspects of the [AIRC’s] functioning,” the legislation did not conflict with the constitution.  The Court did not need to decide whether specific penalties (such as removal or monetary fines) conflicted with the constitution and, in any event, the Court suggested that those penalties “could be severed.”

The AIRC separately argued that application of the Open Meeting Law would violate separation of powers because use of the statutory investigatory and enforcement powers would “chill the independence of the commissioners” and would threaten the integrity of the commission’s redistricting work.  The Court was not persuaded, holding that the statute already protects against such abuse because it allows a court to determine, as it did here, whether there is a reasonable basis for an investigation into open meeting violations.

With respect to legislative privilege, the Court held that communications regarding the hiring of the mapping consultant were not privileged.  Legislative immunity “bars criminal and civil liability for legislative acts, and includes a testimonial and an evidentiary privilege.”  The Court of Appeals has previously held that the AIRC commissioners “have legislative privilege when formulating a redistricting plan.”  See Ariz. Indep. Redistricting Comm’n v. Fields, 206 Ariz. 130, 75 P.3d 1088 (App. 2003).  Communications regarding the mapping consultant, however, were not privileged because the hiring of the mapping consultant is not a traditional “legislative act.”  Hiring the consultant did not involve “actual creation of districts and discretionary determinations of where to draw districts.”  Instead, the hiring of the consultant “precedes the AIRC’s discretionary policy-making decisions.”

Finally, the Court affirmed the superior court’s finding that the Attorney General lacked reasonable cause to issue the CIDs.  The State failed to appeal or even argue that the lower court erred in finding that there was no reasonable basis for the investigation.  Accordingly, its argument that it could continue the investigation was waived.  Moreover, the Court rejected the State’s contention that it was free to use statutory means of investigation other than the specific CIDs at issue in this case.  The determination that the State lacked reasonable cause for the investigation applied to “any and all OML investigation of the communications alleged.”  Consequently, the Court affirmed the injunction against any further investigation regarding the acts alleged in the Attorney General’s petition for enforcement. 

Judge Kessler authored the unanimous opinion; Judges Brown and Gould concurred.

DISCLOSURE: Attorneys at Osborn Maledon represented the Arizona Independent Redistricting Commission in this appeal.