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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ARIZONA COURT OF APPEALS

DIVISION ONE

JEWISH COMMUNITY RELATIONS COUNCIL OF GREATER 

PHOENIX, et al., Plaintiffs/Appellants,

v.

STATE OF ARIZONA, et al., Defendants/Appellees.

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

Co-counsel for Plaintiffs/Appellants

American Civil Liberties Union of Arizona, Phoenix

By Jared G. Keenan, Benjamin L. Rundall

Co-counsel for Plaintiffs/Appellants

DLA Piper US LLP, Baltimore, MD

By Adam J. Pie, Michael Bakhama

Co-counsel for Plaintiffs/Appellants

FILED 2-2-2023
2

Arizona Attorney General’s Office, Phoenix

By Drew Curtis Ensign, Jeffrey L. Sparks, Robert J. Makar, Ginger Jarvis

Counsel for Defendants/Appellees

MEMORANDUM DECISION

Judge Randall M. Howe delivered the decision of the court, 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 Corrections, Rehabilitation & Reentry (“State”). For the 

following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 The Council is an Arizona nonprofit corporation that 

purports to advocate for Jewish residents and taxpayers in Arizona. Paul 

Rockower, the Council’s executive director, and Alan Zeichick, a Council 

member, are taxpaying Arizona residents.

¶3 The 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, the State moved for a warrant to execute two deathrow convicts. State officials purchased enough cyanide and other chemicals

to execute them 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, reminding 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 lacked

standing, the claim was not ripe, and the complaint failed to state a claim 

that the use of lethal gas was unconstitutional. The court granted the motion 

and dismissed the complaint for lack of standing, finding that the Council 

had not alleged a “distinct and palpable injury.” The court found that the 

funds used to purchase the gas were nominal. The court also found that the 

connection between the injury and illegal act was “quite remote,” noting 

that convicts sentenced 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 had chosen a gas execution. The court added that 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 after 

the court’s ruling, both convicts were executed by lethal injection. The 

Council timely appealed. 

DISCUSSION

¶6 The Council argues that it has standing because the State 

illegally expended taxpayer dollars to purchase cyanide gas for capital 

punishment, violating the Arizona Constitution’s prohibition of cruel and 

unusual punishment. We 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, 383 ¶ 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 we 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 Surprise v. Ariz. Corp. Comm’n, 246 Ariz. 206, 209 ¶ 8 (2019));

Sears, 192 Ariz. at 71 ¶ 24. Parties establish 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 70 ¶ 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 

generally been held sufficient to establish standing[.]”); Smith v. Graham 

Cnty. Cmty. Coll. Dist., 123 Ariz. 431, 432 (App. 1979). But taxpayers must 

“demonstrate a direct expenditure of funds that were generated through 

taxation, an increased levy of tax, or a pecuniary 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 municipal 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 

entitled 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 the State’s motion to 

dismiss based on lack of standing. Although the Council showed that 

taxpayer funds were used to purchase cyanide and other chemicals, 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 429 
JEWISH 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 were legal expenditures. Arizona courts have never found that 

execution by lethal gas is cruel and unusual 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, convicts 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, the purchased gas and refurbished gas chamber 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. Thus, the Arizona 

Constitution’s cruel and unusual punishment provision has not been 

triggered. Nor has the underlying psychological injury—that the Council 

alleged would occur in carrying out a cyanide gas execution—materialized. 

¶12 The Council specifies that it challenges the use of cyanide gas, 

not lethal gas in general. But the decision to explicitly exclude cyanide gas 

from the Arizona Constitution and corollary statutes should be left to the 

legislature. Because the Council has not alleged a distinct and palpable 

injury, it lacks standing.

CONCLUSION

¶13 For the foregoing reasons, we affirm.