IN THE

SUPREME COURT OF THE STATE OF ARIZONA

ROBERT BURNS,

Plaintiff/Appellant,

v.

ARIZONA PUBLIC SERVICE COMPANY, ET AL.,

Defendants/Appellees.

No. CV-21-0080-PR

Filed September 27, 2022

Appeal from the Superior Court in Maricopa County 

The Honorable Daniel J. Kiley, Judge

No. CV2017-001831

REVERSED AND REMANDED 

Opinion of the Court of Appeals, Division One

250 Ariz. 607 (App. 2021)

VACATED

COUNSEL:

William A. Richards (argued), Richards & Moskowitz PLC, Phoenix, 

Attorneys for Robert Burns

Mary R. O’Grady, Joseph N. Roth, Matthew J. Stanford, Osborn Maledon, 

P.A., Phoenix; Matthew E. Price (argued), Jenner & Block LLP, Washington, 

DC, Attorneys for Arizona Public Service Company, et al.

Edward F. Novak, Jonathan G. Brinson (argued), Polsinelli PC, Phoenix, 

Attorneys for Arizona Corporation Commission, et al.

Sarah L. Barnes, Broening Oberg Woods & Wilson, P.C., Phoenix, Attorneys

for (Former) Commissioner Boyd Dunn
BURNS V. ARIZONA PUBLIC SERVICE COMPANY, ET AL.

Opinion of the Court

2

_______________

JUSTICE BOLICK authored the Opinion of the Court, in which JUSTICES

BEENE, MONTGOMERY, and KING joined. VICE CHIEF JUSTICE 

TIMMER dissented. *

_______________

JUSTICE BOLICK, Opinion of the Court:

¶1 In this case we hold that the Arizona Corporation 

Commission (“Commission”) acting by a majority of its commissioners 

may not prevent an individual commissioner from exercising investigatory 

powers pursuant to article 15, section 4 of the Arizona Constitution; and 

that a commissioner aggrieved by such action may seek judicial recourse by 

way of declaratory judgment pursuant to A.R.S. §§ 12-1831 to -1846.

BACKGROUND

¶2 During the 2014 primary and general elections for the 

Commission, allegations were made that two elected commissioners 

received anonymous campaign contributions from Pinnacle West, using 

funds derived from Arizona Public Service Co. (“APS”). Pinnacle West is

the holding company of APS, a public service corporation (“PSC”). In 

November 2015, Robert Burns, then a member of the Commission, 

requested spending reports from APS regarding the 2014 election cycle. 

APS did not comply. Subsequently, Burns requested and received an 

opinion from the Attorney General, who concluded that A.R.S. § 40-241

confers power on individual commissioners to “gather information 

regarding a PSC’s political and charitable contributions, and lobbying 

expenditures, by inspecting the books and records of a PSC, and examining 

under oath PSC personnel.” Op. Ariz. Att’y Gen. I16-005 at 9 (2016).

¶3 In August 2016, the four other commissioners voted to refuse 

to fund Burns’ investigation into APS’s records for its pending rate-making 

case before the Commission (the “Rate Case”). In turn, later that month 

* Chief Justice Robert Brutinel and Justice John R. Lopez IV have recused 

themselves from this case.
BURNS V. ARIZONA PUBLIC SERVICE COMPANY, ET AL.

Opinion of the Court

3

Burns issued two subpoenas to APS in his capacity as a single 

commissioner. Both subpoenas sought information regarding donations 

made to independent expenditure groups to support Commission

candidates in the 2014 election. In February 2017, Burns again issued two 

similar subpoenas to APS during a new Commission proceeding (the 

“Rule-Making Case”). APS did not fully comply with either the 2016 or 

2017 subpoenas.

¶4 Shortly after, in March 2017, Burns sued APS for declaratory 

relief, arguing that individual commissioners have authority to demand 

compliance with subpoenas without the approval from other 

commissioners. APS moved to dismiss, arguing that Burns failed to

exhaust his administrative remedies as to both sets of subpoenas. Ruling in 

favor of APS, the superior court stayed both proceedings so that Burns 

could first exhaust his administrative remedies.

¶5 During the Rate Case, Burns attempted to call six witnesses, 

including APS and Pinnacle West’s president and board chairman. The 

administrative law judge (“ALJ”) declined to call the witnesses without 

approval from the other Commission members. In response, Burns sought 

emergency relief from the ALJ. He also moved to disqualify two 

commissioners, alleging they had received “dark money” from APS and 

Pinnacle West during the 2014 election. The ALJ did not rule on either 

motion.

¶6 Burns next sought compliance with his issued subpoenas. On 

June 20, 2017, the Commission held a public meeting to consider his

motions. An interlocutory order was issued on June 27, 2017 on behalf of 

the Commission and approved by the four other commissioners. The order 

denied Burns’ motions. In the interlocutory order, the other commissioners 

found that Burns’ motions sought information that was irrelevant to the 

Rate Case; the subpoenas were overly broad, burdensome, and would not 

produce admissible evidence; and Burns’ requests for witnesses were 

irrelevant and would not lead to admissible evidence.

¶7 In response, Burns sought leave to amend his superior court 

complaint to challenge the interlocutory order and add the Commission

and the four other individual commissioners as defendants. The superior 

court granted Burns’ motion to amend, and on August 4, 2017, he timely 
BURNS V. ARIZONA PUBLIC SERVICE COMPANY, ET AL.

Opinion of the Court

4

filed his First Amended Complaint. Burns also filed a special action with 

this Court on August 20, 2017. The special action challenged the denial of 

Burns’ motion to suspend the Rate Case to investigate grounds for 

disqualifying the other commissioners. This Court declined jurisdiction.

¶8 Shortly after, the other commissioners reached a settlement 

agreement that the ALJ approved over Burns’ opposition. Following the 

settlement, both APS and the Commission moved to dismiss Burns’ First 

Amended Complaint. The superior court held that (i) the case was not 

moot; (ii) the request for declaratory relief was appropriate to determine the 

commission’s investigatory powers; (iii) the subpoenas did not improperly 

interfere with the legislature’s or Commission’s powers; and (iv) Burns had 

the authority to issue the subpoenas as an individual commissioner.

However, the court also ruled that although individual commissioners may 

issue subpoenas, the power to enforce subpoenas rests with the 

Commission as a body. For that reason, the court dismissed Burns’ First 

Amended Complaint.

¶9 Following that decision, Burns sought leave to amend his 

complaint a second time to request specific declaratory relief on the 

superior court’s rulings in his favor, and to argue his due process right to 

investigate and present facts about APS’s financial support to the 

commissioners’ campaigns. The superior court granted leave to amend in 

part, denying Burns’ request for declaratory relief as to its prior rulings.

¶10 After Burns’ Second Amended Complaint was filed, APS and 

the Commission moved to dismiss it. On January 17, 2019, the superior 

court dismissed the case and entered judgment against Burns. The court 

held that Burns lacked standing to assert his due process argument. 

Additionally, the court held that Burns was not legally entitled to initiate 

and maintain an investigation to disqualify other commissioners.

¶11 Burns timely appealed to the court of appeals challenging the 

dismissal of his two amended complaints. The court of appeals affirmed 

the trial court’s ruling, holding that individual commissioners lack 

authority to enforce investigatory subpoenas in rate-making cases because 

that authority rests solely with the Commission and a majority of its 
BURNS V. ARIZONA PUBLIC SERVICE COMPANY, ET AL.

Opinion of the Court

5

commissioners. Burns v. Ariz. Pub. Serv. Co., 250 Ariz. 607, 614–15 ¶ 34

(App. 2021).

¶12 We granted review on two issues. First, whether the Arizona 

Constitution allows a majority of commissioners to prevent any single 

commissioner from exercising the investigatory powers expressly granted 

to each in article 15, section 4. Second, whether the Arizona Uniform 

Declaratory Judgment Act (“UDJA”) grants a commissioner standing to 

seek a declaration of his and his colleagues’ rights. These are significant 

issues of statewide concern. We have jurisdiction over the appeal pursuant 

to article 6, section 5 of the Arizona Constitution.

DISCUSSION

¶13 We note at the outset that the questions on which we granted 

review are narrow. Moreover, we focus only on the subpoenas issued by 

Burns in the Rate Case that the other commissioners effectively quashed. 

Therefore, we will neither resolve all the issues addressed in the courts 

below nor the appropriate scope of Commission rules and proceedings 

going forward. But we agree with the court of appeals that the questions 

as presented are important and that we should resolve them even though 

Burns and his colleagues are no longer commissioners. Burns, 250 Ariz. 

at 611 ¶ 14. Because they present purely issues of law, we review them de 

novo. Johnson Utils. v. Ariz. Corp. Comm’n, 249 Ariz. 215, 219 ¶ 11 (2020).

¶14 The Commission is established by article 15 of the Arizona 

Constitution. Its creation arose from the framers’ determination “to protect 

the public from corporate abuses and overreaching.” Johnson Utils., 249 

Ariz. at 219 ¶ 13. The Commission has plenary authority to set rates for 

PSCs and permissive authority to regulate PSCs for the health, safety, 

comfort, and convenience of their customers, employees, and the public. 

Ariz. Const. art. 15, § 3; see also Johnson Utils., 249 Ariz. at 220–21 ¶¶ 19, 21. 

As relevant here, the Commission also has authority to investigate records 

and affairs of publicly traded corporations and PSCs. Ariz. Const. art. 15,

§ 4. This Court has held that the Commission has “broad powers to conduct 

public or private investigations to determine whether any person or 

corporation has violated or is about to violate” Arizona laws and may 

“investigate merely on suspicion that the law is being violated, or even just 

because it wants assurance that it is not.” Polaris Int’l Metals Corp. v. Ariz. 

Corp. Comm’n, 133 Ariz. 500, 506 (1982) (quoting U.S. v. Morton Salt Co., 338 
BURNS V. ARIZONA PUBLIC SERVICE COMPANY, ET AL. 

Opinion of the Court

6 

U.S. 632, 642–43 (1950)). Moreover, the legislature may add to the 

Commission’s powers and responsibilities. See Ariz. Const. art. 15, § 6 

(“The law-making power may enlarge the powers and extend the duties of 

the corporation commission, and may prescribe rules and regulations to 

govern proceedings instituted by and before it; but, until such rules and 

regulations are provided by law, the commission may make rules and 

regulations to govern such proceedings.”). 

¶15 Even within its plenary ratemaking authority; however, the 

Commission remains “subject to constitutional constraints and 

requirements, both general (such as due process) and those specific to the 

entity.” Sun City Home Owners Ass’n v. Ariz. Corp. Comm’n, 252 Ariz. 1, 5 

¶ 16 (2021). Those boundaries are subject to judicial review. See Johnson 

Utils., 249 Ariz. at 227 ¶ 52 (“Although we certainly recognize the 

constitutional authority of the Commission, it is our duty to interpret the 

limit and extent of that authority.”).

A. An Individual Commissioner’s Investigatory Authority

¶16 Burns argues that his authority as an individual

commissioner emanates from article 15, section 4, which states as follows:

The corporation commission, and the several members 

thereof, shall have power to inspect and investigate the 

property, books, papers, business, methods, and affairs of any 

corporation whose stock shall be offered for sale to the public 

and of any public service corporation doing business within 

the state, and for the purpose of the commission, and of the 

several members thereof, shall 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. Said commission shall have power to take testimony 

under commission or deposition either within or without the 

state.

Burns asserts that this constitutional text specifically authorizes not only the 

Commission as a whole, but each of its “several commissioners,” to inspect 
BURNS V. ARIZONA PUBLIC SERVICE COMPANY, ET AL.

Opinion of the Court

7

and investigate PSC records and affairs and to compel the testimony of 

witnesses and production of evidence by subpoena and otherwise.

¶17 Burns further identifies as a source of authority A.R.S. 

§ 40-241(A), which provides as follows:

The commission, each commissioner and person employed 

by the commission may, at any time, inspect the accounts, 

books, papers and documents of any public service 

corporation, and any of such persons who are authorized to 

administer oaths may examine under oath any officer, agent 

or employee of such corporation in relation to the business 

and affairs of the corporation.

Burns also notes that Arizona Administrative Code R14-3-109(P) provides 

that “[t]he Commission, a Commissioner, or any party to any proceeding 

before it may cause the depositions of witnesses to be taken in the manner 

prescribed by law and of the civil procedure for the Superior Court of the 

state of Arizona.”

¶18 APS and the Commission counter with several arguments. 

First, they note that under article 15, section 3 of the Arizona Constitution, 

the Commission’s power over ratemaking is plenary, see Johnson Utils., 249 

Ariz. at 221 ¶ 21, and thus, they contend the Commission controls the 

proceedings that lead to ratemaking. They argue that section 4, which 

Burns cites as the constitutional source of his authority to act unilaterally, 

only provides “that the commissioners, when acting on behalf of the 

commission and not independently of the commission, have authority.” 

They also assert that under section 6, the Commission has the power to 

establish rules and procedures unless and until the legislature does so. And 

section 19 invests the Commission with the authority to enforce its rules, 

regulations, and orders, subject to the limitations prescribed in section 16.

¶19 Beyond these constitutional provisions, the Commission and 

APS cite A.R.S. § 40-243(A), which provides that “[a]ll hearings and 

investigations before the commission or a commissioner shall be governed 

by this article, and by rules of practice and procedure adopted by the 

commission.” The Commission argues that when it quashed Burns’ 
BURNS V. ARIZONA PUBLIC SERVICE COMPANY, ET AL.

Opinion of the Court

8

subpoena, it was acting pursuant to R14-3-109(O), which empowers it to 

“[q]uash the subpoena if it is unreasonable or oppressive.”

¶20 Although not addressing the specific subpoenas at issue here, 

the Attorney General, in his opinion responding to Burns’ inquiry, 

concluded that an individual commissioner is authorized to unilaterally 

issue subpoenas to PSCs, pursuant to both article 15, section 4 of the 

Arizona Constitution and A.R.S. § 40-241(A). Op. Ariz. Att’y Gen. I16-005 

at 5. In particular, the Attorney General observed that “[t]he plain language 

of Section 40-241(A) specifically refers to not just ‘[t]he commission’ but also 

‘each commissioner.’” Id. at 8 (second alteration in original).

¶21 The court of appeals, by contrast, agreed with APS and the 

Commission. It noted that under article 15, section 6 of the Arizona 

Constitution, the Commission is authorized to make rules and regulations 

to govern proceedings before it. Burns, 250 Ariz. at 612 ¶ 20. The 

Commission quashed Burns’ subpoena under one such rule, R14-3-109(O),

and the court held that its “review of a Commission determination not to 

enforce a subpoena is deferential.” Id. ¶ 23.

¶22 With respect to the narrow issue presented here of a single 

commissioner’s authority to inspect the books of a PSC and depose its 

officials, we agree with the Attorney General and Burns: the principal 

source of that authority is article 15, section 4 of the Arizona Constitution. 

The court of appeals quoted its language, Id. ¶ 19, but then failed to apply 

it, instead subordinating the authority provided there to the Commission’s 

general rulemaking authority. That was in error.

¶23 Our role in constitutional interpretation is to construe the text, 

when possible, in accord with its plain meaning. Morrissey v. Garner, 248 

Ariz. 408, 410 ¶ 8 (2020). We seek to give effect to every word, so as to 

render superfluous none of the text. Id. We also read the provision at issue 

in its broader context. Id.

¶24 Article 15, section 4 confers the power to inspect and 

investigate upon “[t]he corporation commission, and the several members 

thereof.” Ariz. Const. art. 15, § 4. It further provides that “for the purpose 

of the commission, and of the several members thereof, [they] shall have 
BURNS V. ARIZONA PUBLIC SERVICE COMPANY, ET AL.

Opinion of the Court

9

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

witnesses and the production of evidence by subpoena” or otherwise. Id.

¶25 “Several” in this context means separate, respective, or 

individual. Several, Merriam-Webster, https://www.merriamwebster.com/dictionary/several (last visited Sept. 21, 2022)1; cf. U.S. Const.

art. 1, § 2, cl. 1 (“The House of Representatives shall be composed of 

Members chosen . . . by the People of the several States.”). Were it to mean 

the collective body, no reason would exist to conjoin the Commission “and 

the several members thereof.” Ariz. Const. art. 15, § 4. Moreover, the 

drafters’ use of a comma following “[t]he corporation commission” 

indicates that what follows is a separate category. See, e.g., U.S. v. Ron Pair 

Enters., 489 U.S. 235, 241 (1989) (stating that where two nouns are separated 

by a comma as well as “and,” each “stands independent” of the other); State 

v. Feldstein, 134 Ariz. 129, 130 (App. 1982).

¶26 The Commission argues that the introduction to the second 

part of the provision—“for the purpose of the commission”—restricts the 

investigatory powers to the purpose established by the commission. Ariz. 

Const. art. 15, § 4. But again, this preface is conjoined with “and of the 

several members thereof.” Reading section 4 in its totality, giving effect to 

every word, the conclusion is inescapable: it provides to the Commission, 

and to its individual members, the authority to investigate and inspect, and 

the power of a court of general jurisdiction to compel the attendance of 

witnesses and the production of documents through specified means such 

as a subpoena.

¶27 This interpretation is consistent with the Commission’s 

structure. Our constitution’s framers could have provided for a single 

commissioner. Instead, it comprised the Commission of three members, 

later enlarged to five, three of whom are elected at one general election and 

1

 A 1912 dictionary likewise defines “several” to include distinct, separate, 

different, and various; but also “consisting of a number more than two, but 

not many.” Several, New Websterian Dictionary Illustrated 745 (1912). 

Given that the Commission initially was comprised of only three members, 

“a number more than two” would comprise the entire Commission, 

rendering meaningless “the several members thereof.” Ariz. Const. art. 15, 

§ 4. We therefore conclude that the meaning of “several” in this context 

means the individual commissioners.
BURNS V. ARIZONA PUBLIC SERVICE COMPANY, ET AL.

Opinion of the Court

10

two the next. Ariz. Const. art. 15, § 1(B). That structure facilitates a 

Commission that acts as a collective body in most instances, but with 

individual members authorized to act unilaterally in specified 

circumstances.

¶28 Moreover, other provisions of article 15 (§§ 3, 5, 6, 14, 19) 

confer authority exclusively upon the “commission,” whereas “and the 

several members thereof” is confined to section 4. Where the drafters used 

different language in different provisions, we imply that a different 

meaning is intended. Rochlin v. State, 112 Ariz. 171, 176 (1975) (“If the 

authors of the constitution had intended the sections to mean the same 

thing they could have used the same or similar language. The fact that they 

did not, requires the conclusion that the sections were meant to be 

different.”). The framers plainly meant to authorize not only the 

Commission but also individual commissioners, for their purposes, to issue 

investigatory subpoenas.

¶29 Reading article 15 in its entirety dictates that any other 

interpretation would render section 4 superfluous. It would expressly vest 

powers in individual commissioners but then subordinate that right to the 

unreviewable determinations of other commissioners. Burns’ allegations 

demonstrate how untenable such a construction is, whereby a 

commissioner’s investigation into possible improprieties concerning his 

colleagues can be squelched by the very subjects of the investigation.

¶30 The court of appeals emphasizes the regulatory authority 

conferred upon the Commission by article 15, section 6 of the Arizona 

Constitution to “make rules and regulations” to govern proceedings. Burns,

250 Ariz. at 612 ¶ 20. We do not read separate constitutional provisions to 

determine which prevails over the other; rather, we read them to harmonize 

the provisions and give effect to each. State v. Osborne, 14 Ariz. 185, 204 

(1912) (observing that “each and every clause in a written [c]onstitution has 

been inserted for some useful purpose” and “whenever it is possible to do 

so, each provision must be construed so that it shall harmonize with all 

others without distorting the meaning of any of such provisions”). Giving 

all provisions due meaning, the Commission possesses authority to the 
BURNS V. ARIZONA PUBLIC SERVICE COMPANY, ET AL.

Opinion of the Court

11

extent provided to create rules and procedures but not to cancel the 

individual commissioners’ express rights.

¶31 Nor does the fact that the subpoenas were issued in the 

context of a ratemaking proceeding under article 15, section 3 alter the 

analysis. Although that section invests the Commission with plenary 

authority to regulate rates, it neither furnishes additional authority to the 

Commission to establish procedural rules (which is conferred by section 6) 

nor cancels an individual commissioner’s investigatory powers under 

section 4. Indeed, as the circumstances here illustrate, it may be especially 

pertinent for a commissioner to deploy such investigatory powers to 

determine possible conflicts of interest in a rate case. And as we 

emphasized in Johnson Utilities, even the Commission’s plenary ratemaking 

authority is constrained by the constitution. Johnson Utilities, 249 Ariz. 

at 221 ¶ 23. Again, we seek to harmonize the powers and constraints set 

forth in article 15.

¶32 Moreover, the court of appeals omits a crucial part of the 

constitutional passage conferring regulatory authority. It cites the language 

from section 6 that “the commission may make rules and regulations to 

govern [proceedings instituted by and before it],” Burns, 250 Ariz. at 612 

¶ 20 (alteration in original), but fails to acknowledge the temporal 

limitation immediately preceding it: “until such rules and regulations are 

provided by law.” Ariz. Const. art. 15, § 6. The legislature definitively 

resolved this very question in A.R.S. § 40-241(A), which authorizes the 

Commission and “each commissioner” to inspect a PSC’s books and papers 

and to examine PSC officials under oath.

¶33 Though Burns argued he had authority under § 40-241(A), the 

court of appeals nowhere addressed that statute, instead proceeding

directly to the agency’s rules, specifically R14-3-109(O). Burns, 250 Ariz. 

at 612 ¶ 21. It is unclear whether R14-3-109 as a whole, or subsection (O) in 

particular, applies in this context. See, e.g., R14-3-101(A) (providing that the 

rules shall not “apply to any investigation by the Commission, any of its

divisions or its staff”). Regardless, the Commission cannot by 

administrative fiat erase an individual commissioner’s constitutional 

authority. See, e.g., Polaris, 133 Ariz. at 506; Saguaro Healing LLC v. State, 249 

Ariz. 362, 365 ¶ 19 (2020) (noting “[t]he scope of an agency’s power is 

measured by statute and may not be expanded by agency fiat.” (alteration 
BURNS V. ARIZONA PUBLIC SERVICE COMPANY, ET AL. 

Opinion of the Court

12 

in original) (quoting Cochise Cnty. v. Ariz. Health Care Cost Containment Sys., 

170 Ariz. 443, 445 (App. 1991))).

¶34 That does not mean that the individual commissioner’s 

subpoena powers are without constraint. To the contrary, they are bound 

by the Commission’s own limited constitutional authority, as well as the 

overarching requirements of due process. Polaris, 133 Ariz. at 507. The 

target of a subpoena may seek judicial recourse through a declaratory 

judgment action and Arizona Rule of Civil Procedure 45, or other legally 

authorized recourse. We also do not imply that the fruits of an individual 

commissioner’s investigation are necessarily admissible in a particular 

Commission proceeding.

¶35 Likewise, the Commission may adopt and enforce subpoena 

procedures. See A.R.S. § 40-243(A) (“All . . . investigations before the 

commission or a commissioner shall be governed by this article, and by 

rules of practice and procedure adopted by the commission.”). Such 

authority clearly encompasses rate cases, which are quasi-judicial 

proceedings where more formal procedures may be appropriate. But the 

Commission has not adopted procedures governing subpoenas issued by 

individual commissioners. It may adopt such procedures so long as they 

do not abrogate an individual commissioner’s constitutional and statutory 

authority. As the following section suggests, an aggrieved commissioner 

should seek recourse through a declaratory action in superior court.

B. Availability of Relief Under the Uniform Declaratory 

Judgment Act

¶36 Section 12-1832 provides in relevant part that “[a]ny 

person . . . whose rights . . . 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.” The legislature further provided that “[t]his article 

is declared to be remedial; its purpose is to settle and to afford relief from 

uncertainty and insecurity with respect to rights, status and other legal 
BURNS V. ARIZONA PUBLIC SERVICE COMPANY, ET AL. 

Opinion of the Court

13 

relations; and is to be liberally construed and administered.” A.R.S. § 12-

1842. 

¶37 As we held above, Burns has a statutory right to investigate 

PSCs. Moreover, we have applied the UDJA to administrative orders. 

Polaris, 133 Ariz. at 504; see also City of Surprise v. Ariz. Corp. Comm’n, 246 

Ariz. 206, 210 ¶ 9 (2019) (holding that indirect assertion of regulatory 

authority provides “sufficient injury to provide standing”). 

¶38 No party seriously disputes Burns’ standing to pursue relief 

under the UDJA. Rather, the Commission and APS argue that the courts 

below were correct in denying declaratory relief. On the narrow 

substantive issue on which we granted review, we disagree and remand to 

the trial court to determine if any further proceedings are warranted given 

that Burns no longer serves on the Commission.

C. Attorney Fees

¶39 Per Burns’ motion, we award his attorney fees pursuant to 

A.R.S § 12-348.01, and costs under A.R.S. § 12-1840. 

CONCLUSION

¶40 We vacate the opinion of the court of appeals, reverse the 

superior court’s denial of summary judgment on the issues before us, and 

remand the case to that court for any further proceedings consistent with 

this ruling.
BURNS V. ARIZONA PUBLIC SERVICE COMPANY, ET AL.

VICE CHIEF JUSTICE TIMMER, Dissenting 

14

TIMMER, VCJ., Dissenting

¶41 I agree with my colleagues that Burns has standing under the 

Uniform Declaratory Judgments Act, A.R.S. §§ 12-1831 to -1846, to file this 

lawsuit. I also agree that the Arizona Corporation Commission, by majority 

vote, cannot prevent an individual commissioner from exercising his 

authority under article 15, section 4 of the Arizona Constitution, to inspect 

and investigate the affairs of a publicly held corporation or a public service 

corporation (“PSC”). But I disagree with my colleagues that the 

Commission prevented Burns from exercising his right to inspect and 

investigate here by denying several motions Burns filed in APS’s rate case.

¶42 As a commissioner, Burns had constitutional authority to 

inspect and investigate “the property, books, papers, business, methods, 

and affairs” of APS and its holding company, Pinnacle West Capital 

Corporation. See Ariz. Const. art. 15, § 4; see also A.R.S. § 40-241(A) 

(authorizing individual commissioners “at any time [to] inspect the 

accounts, books, papers and documents of any [PSC]”). He exercised this 

authority outside the rate case. For example, in 2015 Burns created a 

“generic docket” to explore PSC’s campaign contribution practices. In that 

docket, Burns demanded that APS produce a “full report[] of any campaign 

contributions and indirect contributions to third-party organizations” 

made during the 2014 election cycle, and later broadened that request to 

include “funds expended on all political contributions, lobbying, and 

charitable contributions, i.e., all donations made—either directly or 

indirectly—by APS or under APS’s brand name for any purpose.” APS 

refused to comply with Burns’ demands, but Burns did not enforce the 

request by issuing a subpoena and apparently dropped the matter in that 

docket. See Ariz. Const. art. 15, § 4 (empowering an individual 

commissioner to “enforce the attendance of witnesses and the production 

of evidence by subpoena, attachment, and punishment”).

¶43 APS’s rate case began in 2016 when it filed an application to 

set new utility rates. The Commission then issued orders setting a 

procedural schedule, granting several interventions, and consolidating the 

rate case with two APS audits. Most of the approximately forty parties in 

the case reached a settlement agreement that increased APS’s base rate, and 

after reviewing documentation and conducting a seven-day evidentiary 

hearing, an administrative law judge (“ALJ”) recommended that the 
BURNS V. ARIZONA PUBLIC SERVICE COMPANY, ET AL.

VICE CHIEF JUSTICE TIMMER, Dissenting 

15

Commission approve the new rate as just and reasonable. In 2017, the full 

Commission, with Burns dissenting, adopted the ALJ’s recommendation.

¶44 During the rate case proceedings, Burns renewed his quest to 

obtain information about APS and Pinnacle West’s spending. He issued 

two subpoenas duces tecum compelling the companies to produce 

documents and information identifying political and charitable 

contributions and lobbying and marketing/advertising expenditures from 

2011 through 2016. APS and Pinnacle West moved to quash the subpoenas, 

but the Commission never ruled on the motion. See Ariz. Admin. Code

R14-3-109(O)(1) (empowering the Commission to quash unreasonable or 

oppressive subpoenas). Then Burns filed this lawsuit asking the superior 

court to declare he was entitled to demand compliance with the subpoenas, 

but the court stayed the suit to give Burns an opportunity to exhaust his 

administrative remedies by asking the Commission to compel compliance.

¶45 Thereafter, and as pertinent here, Burns filed motions to 

(1) compel APS and Pinnacle West’s compliance with the subpoenas; 

(2) require the ALJ to call several previously unscheduled witnesses during 

the evidentiary hearing and permit Burns’ private attorney to question 

those witnesses; and (3) stay the entire rate case until Burns completes his 

investigation. The Commission, with Burns dissenting, denied the motions, 

ruling the information sought was irrelevant to the rate case, and the 

subpoenas were overbroad, unduly burdensome, and sought information 

outside the 2015 “test year,” which was the only year relevant in applying 

the rate-setting formula. See Residential Util. Consumer Off. v. Ariz. Corp. 

Comm’n, 240 Ariz. 108, 110 ¶ 6 (2016) (describing the formula); 

R14-2-103(A)(3)(p) (defining “test year”).

¶46 The issue here is whether the Commission’s ruling in matters 

properly brought before it in the rate case violated Burns’ constitutional 

authority under article 15, section 4 of the Arizona Constitution, to inspect 

and investigate. Unlike the majority, I conclude it did not.

¶47 First, even assuming Burns’ subpoenas and requests 

constituted an “investigation” under section 4, nothing in that provision 

authorized him to compel the other commissioners or the Commission as a 

whole to enforce his efforts. See City of Surprise v. Ariz. Corp. Comm’n, 

246 Ariz. 206, 212 ¶ 20 (2019) (noting that the Commission, and necessarily 
BURNS V. ARIZONA PUBLIC SERVICE COMPANY, ET AL.

VICE CHIEF JUSTICE TIMMER, Dissenting 

16

each commissioner by extension, “has no implied powers and its powers” 

are “derived from a strict construction of the [c]onstitution and 

implementing statutes” (quoting Com. Life Ins. Co. v. Wright, 64 Ariz. 129, 

139 (1946))). Thus, although Burns was empowered by section 4 to enforce 

his investigative efforts, he could not force the Commission to assist him by 

granting his motions.2 And no matter how tightly the majority squints, the 

other commissioners’ refusal to compel APS and Pinnacle West’s 

compliance with Burns’ subpoenas did not “effectively quash[]” those 

subpoenas. See supra ¶ 13.

¶48 Second, Burns’ subpoenas and requests were not, in fact, an 

inspection or investigation authorized by section 4, but instead they formed 

part of a contested rate case subject to Commission authority. The Arizona 

Constitution grants the Commission, not individual commissioners, “full 

power” to prescribe just and reasonable utility rates (except as to towns and 

cities). See Ariz. Const. art. 15, § 3; see also Johnson Utils., L.L.C. v. Ariz. Corp. 

Comm’n, 249 Ariz. 215, 221 ¶ 21 (2020) (describing the Commission’s 

ratemaking authority as plenary and exclusive). This “full power” includes 

directing “the timing, procedure, or methods the Commission uses in 

calculating rates.” See id. at 222 ¶ 25. Also, subject to statutory or 

constitutional restraints, the Commission, not individual commissioners, 

has full authority to establish procedures for prescribing rates and to 

preside over proceedings initiated thereunder. See Ariz. Const. art. 15, § 6 

2 What can an individual commissioner do when a publicly owned 

corporation or a PSC refuses to comply with inspection and investigation 

requests? Because section 4 does not direct how an individual 

commissioner can compel enforcement with a subpoena or other inspection 

request, and no statutes or Commission rules otherwise apply, an 

individual commissioner’s only remedy is to seek declaratory and 

injunctive relief from the superior court. See §§ 12-1831 to -1846. The court 

can then resolve any disputes between the commissioner and the targeted 

company and enter appropriate orders. See Polaris Int’l Metals Corp. v. Ariz.

Corp. Comm’n, 133 Ariz. 500, 506 (1982) (“Courts must have the power to 

curb administrative investigations in appropriate instances.”). The 

Commission as a whole is left out of the matter. Burns filed such a lawsuit 

with the superior court, which nevertheless required him to first ask for 

relief from the Commission. As explained hereafter, this was not error 

because Burns’ requests were not part of a solitary investigation but instead 

formed part of a rate case.
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VICE CHIEF JUSTICE TIMMER, Dissenting 

17

(empowering the Commission, absent statutory directives, to promulgate 

rules and regulations to govern proceedings pending before it); see also 

Johnson Utils., 249 Ariz. at 227 ¶ 52 (recognizing that Commission authority 

is subject to judicial review). The Commission has exercised this authority 

by promulgating rules of practice and procedure for rate cases. See 

R14-2-103, -105; R14-3-101 to -113. As the majority suggests, see supra ¶ 33, 

these rules govern contested cases before the Commission but do not apply 

to investigations by the Commission or individual commissioners.

¶49 By filing his motions, Burns did not “inspect and investigate” 

as authorized by section 4. Instead, he participated in the rate case by 

issuing discovery requests through subpoenas and seeking rulings from the 

ALJ and the Commission to enforce his individual determination of what 

was relevant and admissible in the rate case. Had he issued his subpoenas 

in his 2015 docket or opened another docket for investigatory purposes 

while the rate case was pending, I would agree that the other 

commissioners had no authority to interfere with his efforts to investigate 

APS and Pinnacle West’s spending. But section 4 did not authorize him 

under the guise of an “investigation” to hijack a contested rate case 

involving numerous parties that properly followed procedures laid out by 

the Commission under its constitutional authority. See Ariz. Const. art. 15, 

§ 6. In short, the Commission did not interfere with Burns’ investigation; it 

properly invoked its quasi-judicial powers in the rate case to rule on Burns’ 

motions. See Sun City Home Owners Ass’n. v. Ariz. Corp. Comm’n, 252 Ariz. 

1, 5 ¶ 17 (2021).

¶50 The majority’s opinion has lasting consequences that both 

violate the constitution and leave confusion, and potentially chaos, in its 

wake. Now individual commissioners can compel the Commission to 

enable and enforce their inspection and investigation efforts, despite the 

plain language of section 4, which does not direct that result. Also, an 

individual commissioner, under the pretext of inspecting and investigating, 

now can determine what discovery is permissible in rate cases, despite 

section 3, which explicitly gives the Commission as a whole full power to 

make those decisions. It remains uncertain whether an individual 

commissioner may be permitted to insist that certain witnesses be called 

and questioned at a rate case hearing, as Burns argues is within his 

constitutionally bestowed investigatory right. Regardless, it is not difficult 

to imagine that the flow in rate cases could quickly enter choppy waters, 
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VICE CHIEF JUSTICE TIMMER, Dissenting 

18

particularly if individual commissioners exercise their investigatory 

powers in conflicting ways.

¶51 For all these reasons, although I agree with much of the 

majority’s analysis, I respectfully disagree that the Commission here 

prevented Burns from exercising his investigatory powers under section 4. 

I would therefore affirm the superior court’s judgment.