IN THE



## S UPREME 

## C OURT OF THE 

## S TATE OF 

## A RIZONA
A NDY B IGGS ; A NDY T OBIN ; N ANCY B ARTO ; J UDY B URGES ; C HESTER C RANDELL ; G AIL G RIFFIN ; A L M ELVIN ; K ELLI W ARD ; S TEVE Y ARBROUGH ; K IMBERLY Y EE ; J OHN A LLEN ; B RENDA B ARTON ; S ONNY B ORRELLI ; P AUL B OYER ; K AREN F ANN ; E DDIE F ARNSWORTH ; T HOMAS F ORESE ; D AVID G OWAN ; R ICK G RAY ; J OHN K AVANAGH ; A DAM K WASMAN ; D EBBIE L ESKO ; D AVID L IVINGSTON ; P HIL L OVAS ; J. D
. M ESNARD ; D ARIN M ITCHELL ; S TEVE M ONTENEGRO ; J USTIN O LSON ; W ARREN P ETERSEN ; J USTIN P IERCE ; C ARL S EEL ; S TEVE S MITH ; D AVID S T EVENS ; B OB T HORPE ; K ELLY T OWNSEND ; M ICHELLE U GENTI ;

J EANETTE D UBREIL ; K ATIE M ILLER ; T OM J ENNEY ,

Petitioners ,

v.
T HE H ONORABLE K ATHERINE C OOPER , J UDGE OF THE S UPERIOR C OURT OF THE S TATE OF A RIZONA , IN AND FOR THE C OUNTY OF M ARICOPA , Respondent Judge , J ANICE K. B REWER , IN HER O FFICIAL C APACITY AS G OVERNOR OF A RIZONA ; T HOMAS J. B ETLACH , IN HIS O FFICIAL C APACITY A S D IRECTOR OF THE A RIZONA H EALTH C ARE C OST C ONTAINMENT S YSTEM ,

Real Parties in Interest

. No. CV

- 14

- 0132

- PR Filed December 31, 2014 Appeal from the Su perior 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 PARTBIGGS ET AL . v . HON. COOPER ET AL

. Opinion of the Court

2 COUNSE L: Clint Bolick, Kurt M. Altman, and Christina Sandefur (argued) , Scharf

Norton 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 . Mes nard; 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 W illiam E. Morris Institute for Justice Kory A. Langhofer and Thomas J. Basile, Brownstein Hyatt Farber Schreck, LLP, Phoenix, Attorneys for Amic i Curiae Arizona Hospital and Healthcare Association, Abrazo Health Care, Banner Health, and Dignity Health Jo seph 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, C A , A ttorneys for A micus Curiae Pacific Legal FoundationBIGGS ET AL . v . HON. COOPER ET AL

. Opinion of the Court

3 Timothy A. L aSota, 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 JUSTICE S BRUTINEL and TIMMER joined. JUSTICE BERCH, opinion of the Court: ¶1 We granted review to determine whethe r 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 ha s alleged an injury sufficient to confer standing

. I. BACKGROUND ¶2 In the Fifty

- F irst Arizona State L egislature , r epresentatives
introduced HB 2010 to expand Arizona’s indigent healthcare program. HB
2010 include s an assessment on hospitals designed to help fund the
healthcare expansion. T he 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 questionBIGGS ET AL . v . HON. COOPER ET AL

. Opinion of the Court

4 arose whether this supermajority r equirement applie d 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 gove rnor signed it into law as A.R.S. § 36

- 2901.08

. ¶3 Thirty

- six legislators who voted against the bill

— twenty

seven representatives and nine senators

— sued to enjoin enforcement of
Arizona’s healthcare expansion. They claim that by failing to satisfy the supermajority r e quirement , the legislature violated the constitution and
diminished the effectiveness of the ir votes. ¶4 The superior court dismissed the plaintiff leg islators’ 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 require ment applies . S econd, citing Bennett v. Napolitano , 206 Ariz. 520, 81 P.3d 311 (2003) , the court determined that the plaintiff leg islators 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 c ourt of a ppeals reversed

. Biggs v. Cooper , 234 Ariz. 515, 323 P.3d 1166 ( App. 2014). It held that whether the supermajority

r equirement 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 plaintiff s are correct on the merits, the ir vote s on HB 2010 were nullified , and therefore the y ha ve 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 concerni ng 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 T he Arizona Constitution requires that certain revenue generating 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 isBIGGS ET AL . v . HON. COOPER ET AL

. 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”). T he 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 abili ty 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.2 d 436, 437 (1947)). ¶8 In this case, w e decide only whether , once the bill has become law, a group of plaintiff legislator s sufficient to have blocked its passage
ha s 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 Arizon a 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

. Opinion of the Court

7 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 a n “ injury to a private right or to themselves personally” when they simply complain that the ir votes were counted, but the effect was nullified by the g overnor’s acts

. Id. at 526

– 27 ¶¶ 26

– 29 , 81 P.3d at 317

– 18. On the other hand, we have found that the
l egislature as a body suffer s a direct institutional injury , and so ha s 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, 102 8 (2006) (distinguishing Bennett , 206 Ariz. at 5 27 ¶ 29 , 81 P.3d at 3 18 ). ¶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 10 27

– 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 , t wenty Ka nsasBIGGS ET AL . v . HON. COOPER ET AL

. Opinion of the Court

8 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 g overnor , an executive branch officer, voted in
favor of ratification

. Id. Twenty

- one senators and three members of the
Kansas H ouse o f R epresentatives then brought suit challenging the
l i eutenant g overnor ’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” bec ause, but for the lieutenant g overnor overstepping his authority, the ir votes would have been sufficient to defeat ratification. Id. at 438. T he Court
therefore conclude d 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

“ l egislators 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 C oleman involved a ratification requiring a majority vote, the Court’s reasoning i nforms this c ase involving a lawsuit broughtBIGGS ET AL . v . HON. COOPER ET AL

. Opinion of the Court

9 by a minority of the legislature

. For i f a supermajority requirement applies , the vote of the bloc of plaintiff legislators (or at least the plaintiff representatives) here , as in Coleman , would have s uffice d to prevent passage of the law. Thus , this bloc of legislators s uffer ed an institutional injury i f its votes would have suffic ed 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

. Th e twenty

seven representatives’ negative votes equal more than the one

- third plus one vote necessary to have defeat ed 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 twentyBIGGS ET AL . v . HON. COOPER ET AL

. Opinion of the Court

10 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 th e allegation s of t he individual legislators in Benne t t , 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 th e g overnor unconstitutionally veto ed eleven items in the 2004 Budget and three related
Omnibus Reconciliation Bills

. Bennett , 206 Ariz. at 522 ¶¶ 1, 3 , 81 P.3d at
313

. Th is Court found that the individual plaintiffs had not shown either specific injury to themselves or nullification of the ir votes. Id. at 526

– 27 ¶ 2 8 , 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 52 7 ¶ 29 , 81 P.3d at 31 8

. That distinction between Coleman
and Bennett ap plies to the plaintiff legislators here, bringing them within
Coleman ’s exception and conferring standing

. ¶15 T hroughout this case, plaintiff representatives have a sserted

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

. Opinion of the Court

11 individual rather than institutional standing. In doing so, however, they
also have cited Coleman and alleged t hat t hey had sufficient votes to have defeated HB 2010, if a supermajority vote was required for its passage. As set forth, plaintiff represent atives’ 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 i n other cases involving law suits by legislators, we have not found standing for legislators unless they have obtained the legislature’s approval to sue

. C ompare Forty

Seventh Legislature , 213 A riz. at 486

– 87 ¶ ¶ 14

– 15 , 143 P.3d at 1027

– 2 8 (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 g overnor’s line

- item veto)

. But when , as here, a minority of the legislature sufficient to preventBIGGS ET AL . v . HON. COOPER ET AL

. Opinion of the Court

12 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

re ceiv ing 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 43 6, 438 ) ; Bennett , 206 Ariz. at 527 ¶ 29, 81
P.3d at 318

. ¶17 T he G overnor and Director argue that the plaintiff l egislators had other remedies available to them, such as attempting to repeal the law or seeking a referendum on it. But the plaintiff l egislators 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 T he 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,BIGGS ET AL . v . HON. COOPER ET AL

. Opinion of the Court

13 argue that the hospitals likely will never challenge the law because they supported its passage a nd will benefit from i t

. 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, b ecause 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 l egislators here
would have sufficed to defeat HB 2010 if a supermajority was required for
enactment, the group has alleged that its members’ vote s w ere effectively
nullified

. W e therefore hold that the superior court erred in dismissing this action for lack of standing b y the plaintiff representatives to challenge the constitutional validity of the passage of A.R.S. § 36

- 2901.08

. ¶20 P laintiff legislators have requested an award of attorneys’
fees. Because there has been no determination on the merits, we deny an
award witho ut prejudice to p laintiff legislators’ seeking an award from the superior court should they ultim ately prevail in this lawsuit.
III. CONCLUSION ¶21 We approve in part the result reached by the court of appealsBIGGS ET AL . v . HON. COOPER ET AL

. Opinion of the Court

14 but vacate paragraph s 15 and 16 of its opinion , reverse the s uperior court’s
order insofar as it concern s standing by the plaintiff legislators , and remand
this case to the superior court for proceedings consistent with this opinion

.