IN THE

SUPREME COURT OF THE STATE OF ARIZONA

ANDY BIGGS; ANDY TOBIN; NANCY BARTO; JUDY BURGES;

CHESTER CRANDELL; GAIL GRIFFIN; AL MELVIN; KELLI WARD;

STEVE YARBROUGH; KIMBERLY YEE; JOHN ALLEN; BRENDA BARTON;

SONNY BORRELLI; PAUL BOYER; KAREN FANN; EDDIE FARNSWORTH;

THOMAS FORESE; DAVID GOWAN; RICK GRAY; JOHN KAVANAGH;

ADAM KWASMAN; DEBBIE LESKO; DAVID LIVINGSTON; PHIL LOVAS;

J.D. MESNARD; DARIN MITCHELL; STEVE MONTENEGRO; JUSTIN OLSON;

WARREN PETERSEN; JUSTIN PIERCE; CARL SEEL; STEVE SMITH;

DAVID STEVENS; BOB THORPE; KELLY TOWNSEND; MICHELLE UGENTI;

JEANETTE DUBREIL; KATIE MILLER; TOM JENNEY,

Petitioners,

v.

THE HONORABLE KATHERINE COOPER, JUDGE OF THE SUPERIOR COURT OF 

THE STATE OF ARIZONA, IN AND FOR THE COUNTY OF MARICOPA,

Respondent Judge,

JANICE K. BREWER, IN HER OFFICIAL CAPACITY AS GOVERNOR OF ARIZONA;

THOMAS J. BETLACH, IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE 

ARIZONA HEALTH CARE COST CONTAINMENT SYSTEM,

Real Parties in Interest.

No. CV-14-0132-PR

Filed December 31, 2014

Appeal from the Superior Court in Maricopa County

The Honorable Katherine M. Cooper, Judge

No. CV2013-011699

REVERSED IN PART; REMANDED

Opinion of the Court of Appeals, Division One

234 Ariz. 515, 323 P.3d 1166 (2014)

AFFIRMED IN PART; VACATED IN PART
BIGGS ET AL. v. HON. COOPER ET AL.

Opinion of the Court

2

COUNSEL:

Clint Bolick, Kurt M. Altman, and Christina Sandefur (argued), ScharfNorton Center for Constitutional Litigation at the Goldwater Institute, 

Phoenix, Attorneys for Andy Biggs; Andy Tobin; Nancy Barto; Judy Burges; 

Chester Crandell; Gail Griffin; Al Melvin; Kelli Ward; Steve Yarbrough; 

Kimberly Yee; John Allen; Brenda Barton; Sonny Borrelli; Paul Boyer; Karen 

Fann; Eddie Farnsworth; Thomas Forese; David Gowan; Rick Gray; John 

Kavanagh; Adam Kwasman; Debbie Lesko; David Livingston; Phil Lovas; 

J.D. Mesnard; Darin Mitchell; Steve Montenegro; Justin Olson; Warren 

Petersen; Justin Pierce; Carl Seel; Steve Smith; David Stevens; Bob Thorpe; 

Kelly Townsend; Michelle Ugenti; Jeanette Dubreil; Katie Miller; Tom 

Jenney

Douglas C. Northup, Timothy Berg (argued), Patrick Irvine, and Carrie 

Pixler Ryerson, Fennemore Craig, P.C., Phoenix, Attorneys for Governor 

Janice K. Brewer and Director Thomas J. Betlach; and Joseph Sciarrotta, Jr., 

Office of Governor Janice K. Brewer, Phoenix, Co-Counsel for Governor 

Janice K. Brewer

Timothy M. Hogan and Joy Herr-Cardillo, Arizona Center for Law in the 

Public Interest, Phoenix; and Ellen Sue Katz, William E. Morris Institute for 

Justice, Phoenix, Attorneys for Amici Curiae Arizona Center for Law in the 

Public Interest and The William E. Morris Institute for Justice

Kory A. Langhofer and Thomas J. Basile, Brownstein Hyatt Farber Schreck, 

LLP, Phoenix, Attorneys for Amici Curiae Arizona Hospital and Healthcare 

Association, Abrazo Health Care, Banner Health, and Dignity Health

Joseph A. Kanefield and Brunn W. Roysden, III, Ballard Spahr LLP, 

Phoenix, Attorneys for Amici Curiae Fife Symington, III, et al.

James S. Burling, Pacific Legal Foundation, Sacramento, CA, Attorneys for 

Amicus Curiae Pacific Legal Foundation
BIGGS ET AL. v. HON. COOPER ET AL.

Opinion of the Court

3

Timothy A. LaSota, Tiffany & Bosco, P.A., Phoenix, Attorneys for Amicus 

Curiae Arizona Free Enterprise Club

Carrie Ann Donnell, Sitren Legal, Phoenix, Attorneys for Amicus Curiae 

Howard Jarvis Taxpayers Association

JUSTICE BERCH authored the opinion of the Court, in which CHIEF 

JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, and JUSTICES

BRUTINEL and TIMMER joined.

JUSTICE BERCH, opinion of the Court:

¶1 We granted review to determine whether a group of 

legislators who voted against House Bill (“HB”) 2010 has standing to 

challenge whether it was passed in a constitutional manner. Because the 

group had enough votes to have blocked the bill if passage required a 

supermajority vote, the group has alleged an injury sufficient to confer

standing.

I. BACKGROUND

¶2 In the Fifty-First Arizona State Legislature, representatives 

introduced HB 2010 to expand Arizona’s indigent healthcare program. HB

2010 includes an assessment on hospitals designed to help fund the 

healthcare expansion. The Arizona Constitution requires that certain acts 

that increase state revenues must pass the legislature by a supermajority 

vote. Ariz. Const. art. 9, § 22(A). During debates over HB 2010, the question 
BIGGS ET AL. v. HON. COOPER ET AL.

Opinion of the Court

4

arose whether this supermajority requirement applied to the bill, but the 

legislature decided, by majority vote in each chamber, that it did not.1 The 

legislature then passed HB 2010 by a simple majority vote, and the governor 

signed it into law as A.R.S. § 36-2901.08.

¶3 Thirty-six legislators who voted against the bill—twentyseven representatives and nine senators—sued to enjoin enforcement of 

Arizona’s healthcare expansion. They claim that by failing to satisfy the 

supermajority requirement, the legislature violated the constitution and 

diminished the effectiveness of their votes.

¶4 The superior court dismissed the plaintiff legislators’ claims 

for lack of standing. The court held, first, that Article 9, Section 22(D) of the 

Arizona Constitution gives the legislature discretion to determine whether 

the supermajority requirement applies. Second, citing Bennett v. Napolitano, 

206 Ariz. 520, 81 P.3d 311 (2003), the court determined that the plaintiff 

legislators lacked standing because they did not suffer an “injury” when

the majority of the legislature found the supermajority requirement

 

1 Article 9, Section 22(C)(2) excepts from the supermajority 

requirement “[f]ees and assessments that are authorized by statute, but are 

not prescribed by formula, amount or limit, and are set by a state officer or 

agency.” Whether HB 2010 falls within the exception or is instead subject 

to the supermajority requirement is not now before us.
BIGGS ET AL. v. HON. COOPER ET AL.

Opinion of the Court

5

inapplicable.

¶5 The court of appeals reversed. Biggs v. Cooper, 234 Ariz. 515, 

323 P.3d 1166 (App. 2014). It held that whether the supermajority 

requirement applies depends on the constitution’s commands, not on the 

legislature’s discretion, and consequently the issue is subject to judicial 

review. Id. at 520 ¶ 9, 323 P.3d at 1171. The court then held that if the 

plaintiffs are correct on the merits, their votes on HB 2010 were nullified, 

and therefore they have standing to challenge the resulting law. Id. at 521 

¶ 15, 323 P.3d at 1172 (citing Coleman v. Miller, 307 U.S. 433, 438 (1939); 

Bennett, 206 Ariz. at 526 ¶ 28, 81 P.3d at 318).

¶6 We granted review because the petition raises an unresolved 

question concerning standing to challenge legislative compliance with the 

constitution’s requirement that certain laws be enacted by a supermajority. 

This legal issue is of statewide importance.

II. DISCUSSION

¶7 The Arizona Constitution requires that certain revenuegenerating bills be passed by a “vote of two-thirds of the members of each 

house of the legislature.” Ariz. Const. art. 9, § 22(A). The parties do not 

dispute that the legislature may determine whether a supermajority vote is 
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Opinion of the Court

6

required during the legislative process. See id. art. 4, pt. 2, § 8 (allowing 

“[e]ach house . . . [to] determine its own rules of procedure”). The parties 

further agree that the legislature may not, by majority vote, be the final 

arbiter of whether the constitutional provision requiring a supermajority 

vote applies. We agree with the court of appeals that giving the legislature 

exclusive authority to decide whether Section 22 applies to a particular bill 

would “eliminate[] Article 9, Section 22’s ability to act as a limiting 

provision on the legislature’s power.” Biggs, 234 Ariz. at 520 ¶ 9, 323 P.3d 

at 1171 (citing Cave Creek Unified Sch. Dist. v. Ducey, 233 Ariz. 1, 5 ¶ 13, 308 

P.3d 1152, 1156 (2013); Earhart v. Frohmiller, 65 Ariz. 221, 224, 178 P.2d 436, 

437 (1947)).

¶8 In this case, we decide only whether, once the bill has become 

law, a group of plaintiff legislators sufficient to have blocked its passage

has standing to challenge the law’s enactment by only a majority vote. In 

Arizona, standing is a prudential consideration rather than a jurisdictional 

one. Dobson v. State, 233 Ariz. 119, 122 ¶ 9, 309 P.3d 1289, 1292 (2013) (noting 

that Article III courts are jurisdictionally limited to “cases or controversies,” 

while Arizona courts are not similarly constrained). To have standing, “a 

plaintiff must allege a distinct and palpable injury.” Sears v. Hull, 192 Ariz. 
BIGGS ET AL. v. HON. COOPER ET AL.

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65, 69 ¶ 16, 961 P.2d 1013, 1017 (1998).

¶9 In Bennett, we noted our hesitance to intervene in disputes 

involving the legislative and executive branches of government. 206 Ariz. 

at 525 ¶ 20, 81 P.3d at 316. There, we held that individual legislators lack 

standing because they do not suffer an “injury to a private right or to 

themselves personally” when they simply complain that their votes were 

counted, but the effect was nullified by the governor’s acts. Id. at 526–27 

¶¶ 26–29, 81 P.3d at 317–18. On the other hand, we have found that the 

legislature as a body suffers a direct institutional injury, and so has standing

to sue, when an invalid gubernatorial veto improperly overrides a validly 

enacted law. See Forty-Seventh Legislature v. Napolitano, 213 Ariz. 482, 487 

¶ 15, 143 P.3d 1023, 1028 (2006) (distinguishing Bennett, 206 Ariz. at 527 ¶ 29, 

81 P.3d at 318).

¶10 In Forty-Seventh Legislature, we relied on Coleman in reasoning

that if a majority bloc of legislators has sufficient votes to defeat a bill, that 

bloc may have standing to assert the institutional injury. Forty-Seventh 

Legislature, 213 Ariz. at 486–87 ¶¶ 14–15 n.4, 143 P.3d at 1027–28 n.4 (citing 

Bennett, 206 Ariz. at 525 ¶ 22, 81 P.3d at 316, for the proposition that Arizona 

courts may find federal case law “instructive”). In Coleman, twenty Kansas 
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Opinion of the Court

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state senators voted to ratify an amendment to the United States 

Constitution, and twenty voted against ratification. 307 U.S. at 436. To 

break the tie, the lieutenant governor, an executive branch officer, voted in 

favor of ratification. Id. Twenty-one senators and three members of the 

Kansas House of Representatives then brought suit challenging the 

lieutenant governor’s right to cast the deciding vote. Id.

¶11 The United States Supreme Court observed that, if the twenty

plaintiff-senators were correct in their allegations, their “votes against 

ratification ha[d] been overridden and virtually held for naught” because, 

but for the lieutenant governor overstepping his authority, their votes 

would have been sufficient to defeat ratification. Id. at 438. The Court 

therefore concluded that the senators had alleged a justiciable injury to their 

“interest in maintaining the effectiveness of their votes.” Id.; see also Raines 

v. Byrd, 521 U.S. 811, 823–24 (1997) (distinguishing Coleman, observing that 

“legislators whose votes would have been sufficient to defeat . . . a specific 

legislative Act have standing to sue . . . on the ground that their votes have 

been completely nullified”).

¶12 Although Coleman involved a ratification requiring a majority 

vote, the Court’s reasoning informs this case involving a lawsuit brought 
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Opinion of the Court

9

by a minority of the legislature. For if a supermajority requirement applies, 

the vote of the bloc of plaintiff legislators (or at least the plaintiff 

representatives) here, as in Coleman, would have sufficed to prevent 

passage of the law. Thus, this bloc of legislators suffered an institutional 

injury if its votes would have sufficed to defeat the law, but the law was 

nonetheless enacted.

¶13 The votes of the plaintiff representatives here would have 

sufficed to defeat enactment, if the supermajority requirement applies. The 

Arizona House of Representatives contains sixty members. The twentyseven representatives’ negative votes equal more than the one-third plus 

one vote necessary to have defeated HB 2010 in the House if the bill requires 

a two-thirds vote for enactment. Thus, passage of the bill by a simple

majority vote effectively negated the plaintiff representatives’ votes and 

they, as a bloc, have therefore alleged a “particularized” injury sufficient to 

confer standing.2 See Coleman, 307 U.S. at 438; Forty-Seventh Legislature, 213 

 

2 Because the plaintiff representatives, as a bloc, alleged an injury 

sufficient to confer standing, the superior court erred in dismissing the 

action in its entirety, even if it correctly dismissed the action as to other 

plaintiffs. No party has requested dismissal of the plaintiff senators from 

this action if only the plaintiff representatives have standing. That issue 

remains open. Cf. Coleman, 307 U.S. at 436 (granting standing to twenty 
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Ariz. at 486–87 ¶¶ 14–15, 143 P.3d at 1027–28.

¶14 The superior court nonetheless concluded that the plaintiff 

legislators’ claims were more like the allegations of the individual 

legislators in Bennett, which were held to be insufficient to support 

standing, than those of the twenty senators in Coleman. We disagree. In 

Bennett, four legislative leaders claimed that the governor

unconstitutionally vetoed eleven items in the 2004 Budget and three related 

Omnibus Reconciliation Bills. Bennett, 206 Ariz. at 522 ¶¶ 1, 3, 81 P.3d at 

313. This Court found that the individual plaintiffs had not shown either

specific injury to themselves or nullification of their votes. Id. at 526–27

¶ 28, 81 P.3d at 317–18. We distinguished Coleman by noting that “the 

twenty-one senators in Coleman constituted a majority of the Kansas 

Senate” whose votes were nullified by the interference with the legislative 

process. Id. at 527 ¶ 29, 81 P.3d at 318. That distinction between Coleman 

and Bennett applies to the plaintiff legislators here, bringing them within 

Coleman’s exception and conferring standing.

¶15 Throughout this case, plaintiff representatives have asserted

 

senators who voted against ratification even though the plaintiff group 

consisted of twenty-one senators and three representatives).
BIGGS ET AL. v. HON. COOPER ET AL.

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individual rather than institutional standing. In doing so, however, they 

also have cited Coleman and alleged that they had sufficient votes to have 

defeated HB 2010, if a supermajority vote was required for its passage. As 

set forth, plaintiff representatives’ allegations sufficiently state a claim of 

particularized injury to the bloc as a whole, though not to each plaintiff 

legislator individually. This injury to the bloc thus does not confer on the 

plaintiff legislators individual standing to sue. Cf. Forty-Seventh Legislature, 

213 Ariz. at 487 ¶ 16 n.5, 143 P.3d at 1028 n.5 (denying individual standing 

to the Senate President and House Speaker). Their standing flows from 

their power, as a group, to have defeated the bill, if a supermajority was 

required for passage.

¶16 The Governor and Director observe that in other cases 

involving lawsuits by legislators, we have not found standing for legislators 

unless they have obtained the legislature’s approval to sue. Compare FortySeventh Legislature, 213 Ariz. at 486–87 ¶¶ 14–15, 143 P.3d at 1027–28

(standing found when the entire legislature sued to challenge line-item 

veto), with Bennett, 206 Ariz. at 526–27 ¶¶ 28–29, 81 P.3d at 317–18 (no 

standing in lawsuit by four legislators to challenge the governor’s line-item 

veto). But when, as here, a minority of the legislature sufficient to prevent
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passage of a bill challenges whether the bill was passed in a constitutional 

manner, that minority may have standing to present its case without first 

receiving legislative approval or joining the entire legislature in the action. 

See Forty-Seventh Legislature, 213 Ariz. at 486–87 ¶¶ 14–15, 143 P.3d at 1027–

28 (citing Coleman, 307 U.S. at 436, 438); Bennett, 206 Ariz. at 527 ¶ 29, 81 

P.3d at 318.

¶17 The Governor and Director argue that the plaintiff legislators 

had other remedies available to them, such as attempting to repeal the law 

or seeking a referendum on it. But the plaintiff legislators need not exhaust 

all alternative political remedies before filing suit. See Forty-Seventh 

Legislature, 213 Ariz. at 487 ¶ 17, 143 P.3d at 1028 (failure to exercise political 

remedies is a “prudential concern” that weighs in favor of denying 

standing, but does not require it). If a majority of legislators violates the 

constitution and thereby injures a minority sufficient to have blocked 

passage of a bill, we cannot require that minority to pursue the virtually 

unattainable remedy of overtaking the majority to repeal the law.

¶18 The Governor and Director also encourage us to deny 

standing because the hospitals subject to the law are more appropriate

parties to bring this challenge. The plaintiff legislators, on the other hand, 
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argue that the hospitals likely will never challenge the law because they 

supported its passage and will benefit from it. While the prospect that an 

issue may otherwise evade review might weigh in favor of granting 

standing in some cases, see Sears, 192 Ariz. at 71–72 ¶ 28 n.9, 961 P.2d at 

1019–20 n.9, because we hold that the plaintiff representatives have 

standing to challenge the law, we need not consider the effect of other 

potential plaintiffs who might bring their own challenges.

¶19 Because the votes of the bloc of plaintiff legislators here 

would have sufficed to defeat HB 2010 if a supermajority was required for 

enactment, the group has alleged that its members’ votes were effectively 

nullified. We therefore hold that the superior court erred in dismissing this 

action for lack of standing by the plaintiff representatives to challenge the 

constitutional validity of the passage of A.R.S. § 36-2901.08.

¶20 Plaintiff legislators have requested an award of attorneys’ 

fees. Because there has been no determination on the merits, we deny an 

award without prejudice to plaintiff legislators’ seeking an award from the 

superior court should they ultimately prevail in this lawsuit.

III. CONCLUSION

¶21 We approve in part the result reached by the court of appeals
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but vacate paragraphs 15 and 16 of its opinion, reverse the superior court’s 

order insofar as it concerns standing by the plaintiff legislators, and remand 

this case to the superior court for proceedings consistent with this opinion.