NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE

.

IN THE 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

JEWISH COMMUNITY RELATIONS COUNCIL OF GREATER

PHOENIX, et al.
, Plaintiff s /Appella n t s ,

v.

STATE OF ARIZONA, et al.
, Defendant s /Appellee s

.
No. 1 CA

- CV 22

- 0343

Appeal from the Superior Court in Maricopa County

No. CV2022

- 001875 The Honorable Joan M. Sinclair
, Judge

AFFIRMED

COUNSEL
DLA Piper US LLP , Phoenix By Craig M. Waugh, Laura E. Sixkiller C o

- c ounsel for Plaintiff

s /Appellant s

American Civil Liberties Union of Arizona , Phoenix By Jared G. Keenan, Benjamin L. Rundall C o

- c ounsel for Plaintiff

s /Appellant s
DLA Piper US LLP
, Baltimore, MD By Adam J. Pie, Michael Bakhama C o

- c ounsel for Plaintiff

s /Appellant s FILED 2-2-20232

Arizona Attorney General’s Office
, Phoenix By Drew Curtis Ensign, Jeffrey L. Sparks, Robert J. Makar, Ginger Jarvis C ounsel for Defendant s

/Appellee s

MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the c ourt, in which Presiding Judge David D. Weinzweig and Judge D. Steven Williams joined.

H O W E , Judge:

¶1 Jewish Community Relations Council of Greater Phoenix
, Paul Rockower, and Alan Zeichick (“ Council ”)
, appeal the trial court’s order granting a motion to dismiss for the State of Arizona and Arizona Department of Correctio ns , Rehabilitation & Reentry (“ State ”)

. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 The Council is an Arizona nonprofit corporation th at purports to advocate for Jewish residents and taxpayers in A rizona. Paul Rockower
, the Council’s executive director, and Alan Zeichick
, a Council member, are taxpaying Arizona residents

. ¶3 T he Arizona Constitution provided that the death penalty be administered by lethal gas until November 1992, when Arizonans adopted Proposition 103 to establish lethal injection as the method of execution

. See Ariz. Const. art. 22, § 22; A.R.S. § 13

– 757. Since then
, only one Arizona convict was executed by lethal gas

. ¶4 Recently , t he State moved for a warrant to execut e two death

row convicts

. State officials purchased enough c yanide and other chemicals to execute the m with lethal gas

. The State also inspected
, refurbished , and recertified a gas chamber

. As a result, the Council sued the State seeking (1)

a declaratory judgment that execution by cyanide gas was a cruel and unusual punishment under the Arizona Constitution
, and (2) a permanent injunction to enjoin the State from purchasing and using cyanide gas for capital punishment

. During World War II, Nazi Germany used hydrogen cyanide gas to exterminate Jews and other minority groups in concentration
camps. The Council argued that the State offended taxpaying Holocaust survivors , remind ing them of their trauma.JEWISH COMMUNITY, et al. v. STATE, et al. Decision of the Court

3 ¶5 The State moved to dismiss, arguing that the Council lack ed standing , the claim was not ripe, and the complaint failed to state a claim that t he use of lethal gas was unconstitutional. The court granted the motion and dismissed the complaint for lack of standing , finding that the Council ha d not allege d a “distinct and palpable injury

. ” The court found that the funds used to purchase the gas were nominal. T he court also found that the connection between the injury and illegal act was “quite remote
, ” noting that convicts s entenced to death before November 1992 could choose between lethal injection and lethal gas

. Seventeen convicts currently had this choice. Of the two convicts whose executions were imminent at the time, no one ha d chosen a gas execution

. The court added th at the Council had not argued that the death penalty or lethal gas were unconstitutional but only requested that the law exclude cyanide gas, which was a policy
matter under the scope of the legislature. We take judicial notice that a fter the court’s ruling, both convicts were executed by lethal injection. The Council timely appeal ed

.
DISCUSSION

¶6 The Council argue s that it ha s standing because the State illegally expended tax payer dollars to purchase cyanide gas for capital punishment
, violati ng the Arizona Constitution’s prohibition of cruel and unusual punishment. W e review the trial court’s grant of a motion to dismiss and questions of standing de novo

. Mills v. Ariz. Bd. of Tech

. Registration , 253 Ariz. 415, 420 ¶ 10 (2022); Brush & Nib Studio, LC v. City of Phoenix , 247 Ariz. 269, 279 ¶ 34 (2019). In reviewing a motion to dismiss, this court “assumes the truth of all well

- pled factual allegations and indulges all reasonable inferences therefrom.” Swift Transp

. Co. of Ariz. L. L.C. v. Ariz. Dep’t of Revenue , 249 Ariz. 382, 38 3 ¶ 3 (App. 2020) (quoting Cullen v. Auto

- Owners Ins. Co. , 218 Ariz. 417, 419 ¶ 7 (2008)).

¶7 Unlike the United States Constitution, the Arizona Constitution does not have a “case or controversy” requirement to establish standing

. See U.S. Const. art. III, § 2, cl. 1 ; Ariz. Const. art. VI; see, e.g. , Sears v. Hull , 192 Ariz. 65, 71 ¶ 24 (1998). Arizona courts are not, therefore,

“ constitutionally constrained” to impose standing minimums , but follow the doctrine of prudential standing, which w e apply “as a matter of judicial restraint” to avoid issuing advisory opinions and ensure cases are ripe and “fully developed between true adversaries

. ” Mills , 253 Ariz. at 423 ¶ 23 (quoting City of Surpri se v. Ariz. Corp. Comm’n , 2 46 Ariz. 206, 209 ¶ 8 (2019) ) ; Sears , 192 Ariz. at 71 ¶ 24

. Parties e stablish standing to bring a constitutional challenge by alleging a “distinct and palpable injury” that “result[s] from the putatively illegal conduct.” Mills
, 253 Ariz. at 423 ¶ 24 (quoting Sears
,JEWISH COMMUNITY, et al. v. STATE, et al. Decision of the Court

4 192 Ariz. at 69 ¶ 16 ) ; Sears , 192 Ariz. at 7 0 ¶ 23. A “generalized harm shared by all or by a large class of people is generally insufficient .” Mills , 253 Ariz. at 423 ¶ 24.

¶8 Arizona taxpayers generally “may enjoin the illegal expenditure of taxpayer dollars.” Welch v. Cochise Cnty. Bd. of Supervisors
, 251 Ariz. 519, 524 ¶ 18 (2021); Rodgers v. Huckelberry , 247 Ariz. 426, 429

– 30 ¶¶ 11

– 14 (App. 2019) (“[A]n allegation of an illegal expenditure has generall y been held sufficient to establish standing [

. ] ”); Smith v. Graham Cnty. Cmty. Coll. Dist. , 123 Ariz. 431, 432 (App. 1979). But taxpayer s must “demonstrate a direct expenditure of funds that were generated through taxation, an increased levy of tax, or a p ecuniary loss attributable to the challenged transaction of a municipality.” Dail v. City of Phoenix , 128 Ariz. 199, 202 (App. 1980); see also Smith
, 123 Ariz. at 433

– 34 (holding that the taxpayer is not required to show pecuniary loss to have standing). “ [ T ] he taxpayer must first show some interest beyond a general desire to enforce the law.” Dail , 128 Ariz. at 202. Thus,

‘ [m] ere illegality is not enough. The very nature and purpose of a taxpayer’s action, like the present one, presume that there will be more than illegality in order to enable him to intervene. The basic theory of such an action is that the illegal action is in some way injurious to municip al and public interests, and that, if permitted to continue, it will in some manner result in increased burdens upon, and dangers and disadvantages to, the municipality and to the interests represented by it and so to those who are taxpayers

. . . To be

en titled to this relief, when waste or injury is not involved, it must appear that, in addition to being an illegal official act, the threatened act is such as to imperil the public interest or calculated to work public injury or produce some public mischief .’

Id. (quoting Henderson v. McCormick , 70 Ariz. 19, 24 (1950) ).

¶9 Here, the trial court properly granted t he State’s motion to dismiss based on lack of standing. Although the Council showed that taxpayer funds were used to purchase cyanide and other chemi cals
, as well

as to inspect and refurbish the gas chamber
, the Council did not allege a distinct and palpable injury “resulting from the putatively illegal conduct

. ” See Sears
, 192 Ariz. at 70 ¶ 23

. Merely alleging that the expenditures were illegal, without demonstrating a present injury resulting from these expenditures, fails to establish standing. Cf. Rogers , 247 Ariz. at 429JEWISH COMMUNITY, et al. v. STATE, et al. Decision of the Court

5 ¶ ¶ 11

– 12 (holding taxpayers had standing to challenge county’s illegal expenditures in selecting contractors in violation of competitive bidding statute)

. ¶10 First, the purchase of the gas and refurbishment of the gas chamber w ere legal expenditure s

. Arizona courts have never found that execution by lethal gas is cruel and unusu al punishment. See, e.g.
, State v. Spears , 184 Ariz. 277, 291 (1996) (holding that convict’s challenge to lethal gas as cruel and unusual punishment had “no merit”); State v. Lopez , 175 Ariz. 407, 417 (1993) (rejecting argument that lethal gas is cruel and unusual punishment)

. While the Arizona Constitution provides that the manner of execution is by lethal injection, c onvicts sentenced to death before November 1992 are entitled to choose between lethal injection and gas. See Ariz. Const. art. 22, § 22; A.R.S. § 13

– 757; State v. McCray , 218 Ariz. 252, 259 ¶ 27 (2008). If they fail to choose, the default method is lethal injection. Ariz. Const. art. 22, § 22; A.R.S. § 13

– 757(B).

¶11 Second, t he purchased gas and refurbished gas cha mber have not been used

. Less than 20 convicts remain on death row who were convicted and sentenced to death before November 1992. No convict has currently elected to be executed by lethal gas. T hus
, the Arizona Constitution’s cruel and unusual punishment provision has not been triggered . Nor has the underlying psychological injury

— that the Council allege d would occur in carrying out a cyanide gas execution

— materialized

. ¶12 The Council specif ies that it challenge s the use of cyanide gas, not lethal gas in gen eral. But the decision to explicitly exclude cyanide gas from the Arizona Constitution and corollary statutes should be left to the legislature. Because the Council ha s not alleged a distinct and palpable injury, it lack s standing.

CONCLUSION

¶13 For the foregoing reasons, we affirm.