IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

ROBERT BURNS, Plaintiff/Appellant,

v.

ARIZONA PUBLIC SERVICE COMPANY, et al., Defendants/Appellees.

No. 1 CA-CV 19-0183

Appeal from the Superior Court in Maricopa County

No. CV2017-001831

The Honorable Daniel J. Kiley, Judge

AFFIRMED

COUNSEL

Richards & Moskowitz PLC, Phoenix, AZ

By William A. Richards

Counsel for Plaintiff/Appellant

Jenner & Block LLP, Washington, DC

By Matthew E. Price 

Osborn Maledon PA, Phoenix, AZ

By Mary R. O’Grady, Joseph N. Roth

Co-Counsel for Defendants/Appellees Arizona Public Service Company, Pinnacle 

West Capital Corporation, and Donald Brandt

FILED 3-4-2021
BURNS v. APSC, et al.

Opinion of the Court

2

Polsinelli PC, Phoenix, AZ

By Edward F. Novak, Jonathan G. Brinson

Counsel for Defendant/Appellee Arizona Corporation Commission

Broening Oberg Woods & Wilson PC, Phoenix, AZ

By Sarah L. Barnes

Counsel for Defendant/Appellee Commissioner Boyd W. Dunn

OPINION

Judge Kent E. Cattani delivered the opinion of the Court, in which 

Presiding Judge Paul J. McMurdie and Judge Jennifer B. Campbell joined.

C A T T A N I, Judge:

¶1 Arizona Corporation Commissioner Robert Burns challenges 

the dismissal of his two amended complaints against Arizona Public 

Service Company (“APS”), its parent company, Pinnacle West Capital 

Corporation (“Pinnacle West”), and their president and board chairman 

(collectively, the “APS Parties”), and against the Commission and other 

Commission members (collectively, the “ACC Parties”). For reasons that 

follow we affirm, holding that a member of the Corporation Commission 

lacks authority to individually enforce an investigatory subpoena in a ratemaking case over the opposition of the majority of the Commission. 

FACTS AND PROCEDURAL BACKGROUND

¶2 On August 25, 2016, Burns issued two subpoenas to the APS 

Parties in a rate-making case pending before the Commission (the “Rate 

Case”). The subpoenas sought information relating to whether the APS 

Parties funneled donations through independent expenditure groups in 

support of other Commission candidates in the 2014 election. Burns also 

initiated a new Commission proceeding in February 2017 (the “RuleMaking Case”), in which he issued the same subpoenas.

¶3 The APS Parties did not comply fully with the subpoenas in 

either proceeding. In March 2017, Burns sued the APS Parties for 

declaratory relief, asking the court to declare that he was authorized to 

demand compliance with the subpoenas without the approval of other 

Commission members. On March 30, 2017, the APS Parties moved to 
BURNS v. APSC, et al.

Opinion of the Court

3

dismiss on the basis that Burns had not exhausted his administrative 

remedies in either the Rate Case or the Rule-Making Case. Over Burns’s

objection, the superior court stayed both proceedings to allow Burns to do 

so.

¶4 Burns subsequently sought to call six witnesses in the Rate 

Case, including APS and Pinnacle West’s president and board chairman. 

The administrative law judge (“ALJ”) assigned to the case declined to call 

the witnesses absent direction from the Commission. Burns sought 

emergency relief from the ALJ and moved to disqualify two of his fellow 

commissioners, contending they had benefited from “dark money” from 

“APS and/or Pinnacle West.” The ALJ did not consider either motion. 

Burns then sought to compel the APS Parties to comply with the subpoenas.

¶5 The Commission set a June 20, 2017, public meeting to 

consider Burns’s motions. The other four commissioners voted to deny the 

motions in an interlocutory order issued on June 27, 2017 over Burns’s

dissent. The other commissioners concluded that: (1) the information Burns 

sought was not relevant to the Rate Case; (2) the subpoenas he issued were 

overly broad, unduly burdensome, and not reasonably calculated to lead to 

the discovery of admissible evidence; and (3) Burns’s requests for witness 

interviews sought irrelevant information and were not reasonably 

calculated to lead to the discovery of admissible evidence.

¶6 Burns then sought leave to amend his superior court 

complaint to add the Commission and his fellow commissioners as 

defendants and to challenge the June 27, 2017 order. The superior court 

granted leave to amend, and Burns filed his first amended complaint on 

August 4, 2017. On August 20, 2017, Burns filed a special action in the 

Arizona Supreme Court challenging the denial of his motion to suspend the 

Rate Case to investigate potential grounds to disqualify other 

commissioners. The Arizona Supreme Court declined jurisdiction, and 

shortly thereafter, the ALJ approved a final settlement in the Rate Case, 

which the Commission voted to confirm, with Burns casting a dissenting

vote.

¶7 The APS Parties and the ACC Parties then moved to dismiss 

Burns’s first amended complaint on numerous grounds, including: the 

Commission’s final Rate Case order rendered it moot; Burns lacked 

authority to enforce the subpoenas over the Commission’s vote not to do 

so; Burns could not sue the other commissioners; the subpoenas intruded 

on the Legislature’s authority to establish the scope of mandatory 

disclosures in rate-making matters and the Commission’s authority to 
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Opinion of the Court

4

establish reporting requirements for regulated entities; and the 

Commission’s rulings were correct. The superior court ruled in Burns’s

favor on four issues, concluding: (1) the case was not moot; (2) a request for

declaratory relief was an appropriate vehicle to consider disputes over the 

Commission’s investigatory powers; (3) the subpoenas did not encroach on 

the Legislature’s or the Commission’s powers; and (4) Burns had the 

authority to issue the subpoenas.

¶8 The court ruled against Burns, however, on the issue of 

whether he could unilaterally enforce the subpoenas, finding that such 

authority rested solely with the Commission. The court reasoned that it 

“could not overrule the decision of a majority of the Commission about the 

proper scope of an ACC investigation without running afoul of the 

‘separation of powers’ principles that are at the heart of our system of 

government.” On that basis, the court dismissed the first amended

complaint.

¶9 Burns sought leave to amend his complaint to request specific 

declaratory relief on the four rulings in his favor. He also contended he had 

a due process right to investigate and present facts relevant to the APS 

Parties’ financial support. of the campaigns of the Defendant 

Commissioners, or against the campaigns of any of their election 

opponents. The court granted leave to amend in part but denied Burns’s 

requests for declaratory relief as to its prior four rulings.

¶10 After Burns filed a second amended complaint, the APS 

Parties and the ACC Parties moved to dismiss, contending (1) Burns had no 

constitutional authority to pursue an investigation over a vote of the 

Commission or to seek to disqualify other commissioners from ruling in the 

Rate Case; (2) Burns lacked standing to assert any due process claims 

stemming from the Rate Case; and (3) the resolution of the Rate Case and 

the “rule of necessity” rendered his contentions moot. The court granted 

the motions, concluding that Burns “lack[ed] standing to assert the due 

process rights of litigants to an unbiased adjudicative process” and “no 

other constitutional or statutory authority entitle[d] him to initiate and 

maintain an investigation into potential grounds for disqualification of his 

fellow Commission members.” The court did not reach the APS Parties’ 

and ACC Parties’ other arguments.

¶11 Burns timely appealed, and we have jurisdiction under A.R.S. 

§§ 12-1837 and -2101(A)(1).
BURNS v. APSC, et al.

Opinion of the Court

5

DISCUSSION

I. Mootness.

¶12 The APS Parties and the ACC Parties urge this court to

dismiss the appeal as moot. We decline to do so.

¶13 Courts generally will not hear declaratory judgment cases 

that raise only moot questions. Thomas v. City of Phoenix, 171 Ariz. 69, 74 

(App. 1991). A case becomes moot when an event occurs that causes “the

outcome of the appeal to have no practical effect on the parties.” Sedona 

Priv. Prop. Owners Ass’n v. City of Sedona, 192 Ariz. 126, 127, ¶ 5 (App. 1998). 

Mootness is not a constitutional concern under Arizona law but rather “a 

matter of prudential or judicial restraint subject to the exercise of our 

discretion.” Cardoso v. Soldo, 230 Ariz. 614, 617, ¶ 5 (App. 2012). And we

may consider an otherwise moot appeal if it presents an issue of significant

public importance or is likely to recur. Big D Constr. Corp. v. Ct. of Appeals, 

163 Ariz. 560, 563 (1990).

¶14 The APS Parties and the ACC Parties contend that Burns’s

appeal is moot because the Rate Case has concluded and the two 

commissioners elected in 2014 are no longer on the Commission. 

Additionally, in August 2019, the Commission adopted a revised Code of 

Ethics that imposes new reporting requirements for commissioners relating 

to campaign contributions. See Code of Ethics, Decision No. 77345, Docket

No. AU-00000E-17=0079, at 7 (Aug. 7, 2019), 

https://docket.images.azcc.gov/0000199337.pdf?i=1609444846123. 

Nevertheless, the issues Burns raises are of significant public importance 

involving the rights and powers of commissioners to investigate matters 

relevant to rate-making proceedings and to enforce compliance with those 

investigations. Moreover, although the Rate Case has been resolved, 

similar issues could arise in future rate cases. Accordingly, we exercise our 

discretion to consider the merits of the appeal. See Arpaio v. Maricopa Cnty.

Bd. of Supervisors, 225 Ariz. 358, 362, ¶ 14 (App. 2010) (exercising discretion 

to hear an otherwise moot appeal because “a decision on the substantive 

issues could affect similar future legislative acts”).

II. Motion to Dismiss.

¶15 We review de novo the dismissal under Arizona Rule of Civil 

Procedure 12(b)(6) of Burns’s amended and second amended complaint.

See Coleman v. City of Mesa, 230 Ariz. 352, 355, ¶ 7 (2012). We accept all wellpleaded facts as true and will affirm only if Burns would not have been 
BURNS v. APSC, et al.

Opinion of the Court

6

entitled to relief under any facts susceptible of proof. See Zubia v. Shapiro, 

243 Ariz. 412, 414, ¶ 13 (2018).

¶16 Burns argues that the superior court erred by concluding that 

it could not review Commission orders declining to enforce a single 

commissioner’s investigatory subpoena. He argues that, because ratemaking matters are quasi-judicial, the superior court has the authority to 

decide whether the Commission’s investigatory actions during a ratemaking proceeding exceeded its plenary constitutional authority or were 

arbitrary and capricious.

¶17 “The framers established the Commission as a separate, 

popularly-elected branch of state government.” Ariz. Corp. Comm’n v. 

Woods, 171 Ariz. 286, 290 (1992), abrogated by Johnson Utilities, L.L.C. v. Ariz. 

Corp. Comm’n, 249 Ariz. 215 (2020). The Commission is “a constitutional 

body which owes its existence to provisions in the organic law of this state.” 

Miller v. Ariz. Corp. Comm’n, 227 Ariz. 21, 24, ¶ 12 (App. 2011). It has broad 

constitutional and statutory powers to regulate public service corporations.

Campbell v. Mountain States Tel. & Tel. Co., 120 Ariz. 426, 431 (App. 1978). 

Generally speaking, “in areas in which the . . . Commission is given 

exclusive power, it is supreme subject to judicial review.” Stop Exploiting 

Taxpayers v. Jones, 211 Ariz. 576, 581, ¶ 20 (App. 2005). Here, the superior 

court recognized its authority to consider whether the Arizona Constitution 

afforded Burns the right to enforce his subpoenas unilaterally in a ratemaking case, see Polaris Int’l Metals Corp. v. Ariz. Corp. Comm’n, 133 Ariz. 

500, 506 (1982), but concluded that Burns was not entitled to the declaratory 

relief he requested.

¶18 Burns argues that, by affirming the Commission’s decision 

not to enforce his subpoenas, the superior court improperly granted the 

Commission an implied power to “nullify[] their fellow commissioners’ 

investigatory subpoenas or requests to call and question witnesses in a rate 

case.” See City of Surprise v. Ariz. Corp. Comm’n, 246 Ariz. 206, 212, ¶ 20 

(2019) (noting that Commission “has no implied powers and its powers do 

not exceed those to be derived from a strict construction of the Constitution 

and implementing statutes”). The superior court’s ruling created no such 

power.

¶19 The Arizona Constitution grants “[t]he corporation 

commission, and the several members thereof,” authority to “inspect and 

investigate the property, books, papers, business, methods, and affairs of 

. . . any public service corporation doing business within the state, and for 

the purpose of the commission, and of the several members thereof, shall 
BURNS v. APSC, et al.

Opinion of the Court

7

have the power of a court of general jurisdiction to enforce the attendance 

of witnesses and the production of evidence by subpoena, attachment, and 

punishment, which said power shall extend throughout the state.” Ariz. 

Const. art. 15, § 4.

¶20 The Constitution also provides, however, that “the 

commission may make rules and regulations to govern [proceedings 

instituted by and before it].” Ariz. Const. art. 15, § 6; see also A.R.S. § 40-

202(A) (“The commission may supervise and regulate every public service 

corporation in the state and do all things, whether specifically designated 

in this title or in addition thereto, necessary and convenient in the exercise 

of that power and jurisdiction.”) (emphasis added).

¶21 And one such rule that the Commission has prescribed is that 

the Commission as a whole resolves objections to subpoenas. Ariz. Admin. 

Code R14-3-109(O). Thus, although individual commissioners have the 

power to issue subpoenas, that power is not without limits when exercised 

as part of commission proceedings and is instead subject to review and 

oversight by the Commission as a whole.

¶22 Burns argues that R14-3-109(O) is a rule applicable only to 

contested cases, and “[i]nvestigatory subpoenas can be issued by 

commissioners in their individual capacity for purposes in addition to or 

outside of uses in contested cases.” But the subpoenas in question here

were in fact issued during the course of a contested rate-making 

proceeding. Accordingly, R14-3-109(O) applies to the subpoenas, and 

whether it would apply if Burns had issued the subpoenas in a different 

context is not before us.1

¶23 Our review of a Commission determination not to enforce a 

subpoena is deferential. We typically afford the Commission “wide berth” 

in reviewing the validity of its investigations, Carrington v. Ariz. Corp. 

Comm’n, 199 Ariz. 303, 305, ¶ 8 (App. 2000), and we afford the Commission 

the same latitude when it votes not to pursue an investigation started by 

one of its elected members. If we were to grant relief in this case, we would 

essentially be overturning the Commission’s vote and directly interfering 

 

1 As noted above, Burns initially pursued subpoenas in the RuleMaking Case, but the court stayed those proceedings to allow Burns to 

exhaust administrative remedies. The record does not reflect any further 

action in the Rule-Making Case, and the motions to dismiss that Burns 

appeals from here addressed only the two subpoenas issued in the Rate 

Case.
BURNS v. APSC, et al.

Opinion of the Court

8

in Commission operations. See A.R.S. § 40-102(C) (“The act of a majority of 

the commissioners when in session as a board shall be the act of the 

commission.”); A.R.S. § 40-254(E); see Forty-Seventh Legislature v. Napolitano, 

213 Ariz. 482, 485–86, ¶ 11 (2006) (“Limiting the actions of each branch of 

government to those conferred upon it by the constitution is essential to 

maintaining the proper separation of powers.”).

¶24 Burns argues in the alternative that the Commission’s 

decision not to enforce his subpoenas was arbitrary and capricious. But this 

argument specifically challenges the June 27, 2017 order, and under A.R.S. 

§ 40-254(A), only parties in interest or the attorney general may bring such 

a challenge:

Except as provided in § 40-254.01, any party in interest, or the 

attorney general on behalf of the state, being dissatisfied with 

an order or decision of the commission, may within thirty 

days after a rehearing is denied or granted, and not 

afterwards, commence an action in the superior court in the 

county in which the commission has its office, against the 

commission as defendant, to vacate, set aside, affirm in part, 

reverse in part or remand with instructions to the commission 

such order or decision on the ground that the valuation, rate, 

joint rate, toll, fare, charge or finding, rule, classification or 

schedule, practice, demand, requirement, act or service 

provided in the order or decision is unlawful, or that any rule, 

practice, act or service provided in the order is unreasonable.

See also A.R.S. § 40-254.01(A) (a party in interest may appeal Commission 

orders “involving public service corporations and relating to rate making 

or rate design” to the court of appeals). Other than by a writ of mandamus 

from the Arizona Supreme Court, this procedure to challenge commission 

orders is exclusive. A.R.S. § 40-254(E). Accordingly, only a “party in 

interest” or the Arizona Attorney General can challenge a decision by the 

Commission. Here, the Attorney General has not sought to intervene, and 

Burns can challenge the decision only if he is a “party in interest” under § 

40-254(A). 

¶25 Burns recognizes that he “is not a party,” but “instead is a 

regulator.” Nevertheless, he asserts that courts have permitted the type of 

arguments he raises. But the cases on which Burns relies were brought by 

interested parties to the proceeding, not by a member of the Commission. 

See State ex rel. Corbin v. Ariz. Corp. Comm’n, 143 Ariz. 219, 233 (App. 1984); 

Polaris, 133 Ariz. at 503 (noting that the Commission “entered a cease and 
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Opinion of the Court

9

desist order” and “issued several subpoenas duces tecum to gather 

information from Polaris and its bank”) (emphasis added); Western Gillette, 

Inc. v. Ariz. Corp. Comm’n, 121 Ariz. 541, 542 (App. 1979).

¶26 Burns also asserts that under Carrington, a court “can measure 

whether an investigatory subpoena is properly authorized or not.” But as 

with the other cited cases, Carrington involved a party’s challenge to an 

action of the Commission, not a challenge by a commissioner who cast a 

dissenting vote. 199 Ariz. at 304, ¶¶ 2–3. And as noted above, we grant the 

Commission “wide berth” in determining the scope of its investigations. Id. 

at 305, ¶ 8. Accordingly, the authority on which Burns relies establishes 

only that an interested party or the Arizona Attorney General is entitled to 

challenge the Commission’s determination not to enforce a subpoena in a 

rate case. Because Burns is neither, he was not entitled to bring such a 

challenge.

III. Standing to Disqualify Other Commissioners.

¶27 Burns also challenges the superior court’s determination that 

he lacked standing to seek disqualification of other commissioners, arguing 

that due process “require[s] a fair tribunal made up of commissioners 

whose impartiality cannot reasonably be questioned.” Burns cites Horne v. 

Polk for the proposition that “[a] quasi-judicial proceeding ‘must be 

attended, not only with every element of fairness but with the very 

appearance of complete fairness.’” 242 Ariz. 226, 234, ¶ 28 (2017) (quoting 

Amos Treat & Co. v. Sec. & Exch. Comm’n, 306 F.2d 260, 266–67 (D.C. Cir. 

1962)). In Horne, however, it was a party to an administrative hearing—not 

an adjudicator—who complained that a county attorney appointed to 

investigate alleged campaign finance violations was biased based on her 

role in prosecuting the matter before she was subsequently appointed as an 

adjudicator. Id. at 228, ¶¶ 2–5.

¶28 The Horne court held that an appearance of potential bias 

arose because the regulatory agency adjudication process “involve[d] the 

same official as both an advocate and the ultimate administrative 

decisionmaker.” Id. at 231, ¶ 16. Here, Burns does not contend that any 

other commissioner advocated for the APS Parties in the Rate Case. Citing 

Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 886 (2009), Burns instead 

contends that due process “may sometimes bar trial by judges who have no 

actual bias and who would do their very best to weigh the scales of justice 

equally between contending parties.” But Caperton, like Horne, involved a 

bias challenge raised by a party to litigation. 556 U.S. at 874–75.
BURNS v. APSC, et al.

Opinion of the Court

10

¶29 Burns also cites State v. Woods, 237 Ariz. 214, 221, ¶ 27 (App. 

2015), in which we recognized that “courts commonly require trial judges 

to poll jurors when [the jurors’] impartiality is called into question.” But

Burns was not a judge polling the actual decision-makers in a rate case; he 

was a co-equal decision-maker with those he alleges were biased.

¶30 In sum, Burns has not established that anyone other than a 

party to a proceeding before the Commission has standing to raise a due 

process challenge to a ruling by the Commission. See also State v. Ellison, 

213 Ariz. 116, 128, ¶ 37 (2006) (“[T]he party moving for change of judge must 

prove a judge’s bias or prejudice by a preponderance of the evidence.”) 

(emphasis added and citation omitted); Simon v. Maricopa Med. Ctr., 225 

Ariz. 55, 63, ¶ 29 (App. 2010) (“A party challenging a trial judge’s 

impartiality must overcome the presumption that trial judges are ‘free of 

bias and prejudice . . . .’”) (emphasis added and citation omitted). 

Accordingly, the superior court did not err by concluding that Burns lacked 

standing to seek to disqualify other commissioners from participating in the 

Rate Case.

IV. Specific Requests for Declaratory Relief.

¶31 Burns also contends the superior court erred by declining to 

issue a declaratory judgment on “multiple conclusions that resolved 

contested issues about [his] rights in his favor.” We disagree.

¶32 Under the Declaratory Judgments Act, “[a]ny person . . . 

whose rights, status or other legal relations are affected by a statute . . . may 

have determined any question of construction or validity arising under the 

. . . statute . . . and obtain a declaration of rights, status or other legal 

relations thereunder.” A.R.S. § 12-1832.

¶33 Burns argues that this provision “provides a right to relief on 

any sub-set of disputed rights whose resolution will help the parties define 

their ongoing interactions.” But that right is not absolute; a court may 

decline to enter a declaratory judgment if it “would not terminate the 

uncertainty or controversy giving rise to the proceeding.” A.R.S. § 12-1836.

¶34 Here, Burns sought a declaratory judgment to give effect to 

the superior court’s rulings in his favor on the motion to dismiss his first 

amended complaint. Burns sought in particular a ruling:

a. That the powers Commissioner Burns has as a 

Commissioner to inspect records, books, papers, business, 
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Opinion of the Court

11

methods and affairs of corporations under A.R.S. § 40-241(A) 

apply to [Pinnacle West] as well as to APS . . .;

b. That Commissioner Burns’ investigatory subpoenas did not 

encroach on powers that are constitutionally entrusted to 

other branches of government . . .;

c. That the Court was unable to decide the Defendants’ First 

Amendment defenses to Commissioner Burns’ investigatory 

subpoenas without further responsive Pleadings and factual 

development in the proceedings . . .; and

d. That it is “plain that the provisions of Ariz. Const., Art. XV, 

§ 4 and A.R.S. § 40-241(A) each authorize Commissioner 

Burns to seek information from [APS and Pinnacle West] by 

subpoena on his own authority and without prior approval of 

the Commission as a whole” . . . .

But none of these rulings, if issued in a judgment, would have terminated

the controversy because the primary issue was not whether Burns could 

issue discovery requests, but rather whether he could unilaterally enforce 

compliance with those requests in a rate case. Accordingly, the court did 

not err by declining to grant specific declaratory relief on these issues. See 

Moore v. Bolin, 70 Ariz. 354, 357 (1950) (“[C]onstitutional questions will not 

be determined abstractly or in a hypothetical case, or anticipated in advance 

of the necessity for determination thereof . . . .”) (quoting 16 C.J.S. 

Constitutional Law § 94, p. 211); see also Polaris, 133 Ariz. at 505 (court lacks 

authority to enter a declaratory judgment on a “mere difference of opinion” 

on a constitutional question); Citizens’ Comm. for Recall of Jack Williams v. 

Marston, 109 Ariz. 188, 192–93 (1973) (“[T]he declaratory judgment act was 

not intended to constitute a fountain of legal advice . . . .”).

V. Attorney’s Fees.

¶35 Burns requests attorney’s fees on appeal under A.R.S. §§

12-348.01 and -1840. Because Burns is not the prevailing party, he is not 

entitled to fees under § 12-348.01, and in the exercise of our discretion, we 

decline to award fees under § 12-1840.
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Opinion of the Court

12

CONCLUSION

¶36 For the foregoing reasons, we affirm.