28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1

KAREN FANN, v. AMERICAN OVERSIGHT valid claim Senat Arizona Court the that the move respectfully and Committee; Judiciary Senate the of Chairman the as capacity her official capacity as the President of the Arizona Senate; Warren Petersen, in his official

Attorneys for President Karen Fann Committee Chairman Kory Langhofer, Ariz. Bar No. 024722 Thomas 649 North Fourth Avenue, First Floor h “ocp o te eaain f oes s udmna t constitutional to fundamental is powers of separation the of “concept The Procedure Civil of Rule Arizona to Pursuant [email protected] Phoenix, Arizona 85003 IN THE SUPERIOR COURT FOR THE STATE OF STATE THE FOR COURT SUPERIOR IN THE [email protected] . and

Basile, Ariz. Bar. No. 031150

(602) 382 (602) the Defendants MEMORANDUM OF POINTS AND AUTHORITIES et al.

Arizona Senate IN AND FOR THE COUNTY OF COUNTY THE FOR IN AND Defendants P , laintiff

- , Warren Petersen 4078 Senate Judiciary

, Arizona Senate

,

.

dismiss the Complaint in its entirety for failure to state a state to failure for entirety its in Complaint the dismiss

I NTRODUCTION

,

(Assigned to the Hon. Hon. the to (Assigned 12(b)(6)

DEFENDANTS’ MOTION

MARICOPA No.

, Defendants Karen Fann, in in Fann, Karen Defendants ,

CV2021 DISMISS ARIZONA *** ElectronicallyFiled Clerk oftheSuperiorCourt

6/9/2021 4:38:10PM Filing ID12994483 - T. Hays,Deputy 00 Michael Kemp

8265

TO ) e

28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1

government as we know we as government (Nov. 5, 2020) (Mikitish, J.) (dismissing claims of alleged Open Meeting Law violations as v. Arizona State Legislature questions. political nonjusticiable present them with compliance Legislature’s necessar PRA) the as (such measures statutory because recognized, Court this of division another to order its own internal procedures and affairs. legislative Consti Arizona The records. are posits itself Plaintiff the what of disclosure the coerce to power judicial Senate, Arizona the of those “constructive[ly]” somehow 39 § A.R.S. Act, Records Public Arizona the that follows w bodies” “public not are government state the to vendors as serve that corporations private straightforward: and discrete is dispute questions.” political addressing from refrain “courts branches, coordinate the of prerogatives the to with what the court divines to be some superseding policy objective. Second, in deference ¶ 13 (App. 2001), in order to remedy some perceived dra that intended by the legislature,” beyond statute a of scope the extend would that words supply to authorized not “are they elected people’s the by adopted actually text the effectuate must statute a legislature alone.” 300 (1988). Embedded within this constitutional axiom are two foundational corollaries. “more explicitly and firmly expressed than in Arizona.” First, “questions of the wisdom, justice, policy or expediency of a statute are for the the for are statute a of expediency or policy justice, wisdom, the of “questions First, And even if the Plaintiff were correct that this of crux The claims. Plaintiffs’ the of dispose independently principles Both ily are subordinate to this constitutional constitutional this to subordinate are ily

Kromko v. Ariz. Bd. of Re any documents in their possession, custody or control are outside the scope of scope the outside are control or custody possession, their in documents any Giss v. Jordan

it,” it,” , CV2019 tution entrusts to each house of the Legislature plenary power power plenary Legislature the of house each to entrusts tution Ahearn v. Bailey v. Ahearn Calnimptewa v. Flagstaff Police Dept. , 82 Ariz. 152, 159 (1957). Courts tasked with construing - gents 014945, Minute Entry: Ruling on Motion to Dismis

, 216 Ariz. 190, 192, ¶ 12 (2007). 12 ¶ 192, 190, Ariz. , 216 ithin the meaning of A.R.S. § 39 § A.R.S. of meaning the ithin 2 -

121,

, 104 Ariz. 250, 252 (1969), and is nowhere nowhere is and (1969), 252 250, Ariz. 104 , See the the internal files of private contractors are et seq.

Ariz. Const. art. IV, pt. 2, §§ 8 function

Mecham v. Gordon fting fting deficiency or to align the law

(the “ (the Compl. ¶ 82, ¶ Compl. , allegations concerning the the concerning allegations , PRA

”). , 200 Ariz. 567, 570,

it cannot enlist the the enlist cannot it

representatives; representatives; , 156 Ariz. 297, -

121.01(2 See Puente See - 10. As ). It ). s

28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1

2 1 nonjusticiable). by possessed privil records of public redaction material. or responsive withholding Plaintiff the to the subject to Bennett, Secretary produce to Arizona the agreed dispute, parties’ has the Senate of scope the narrowing of interest the in Nevertheless, 39 § A.R.S. of meaning the within “officer” an not is Bennett Secretary that Appeals. of Court Arizona the of One Division before pending remains or of Secretary Bennett subvendors, but not in the physical possession or physical custody of any of the Defendants its of one and/or Ninjas Cyber of custody physical or possession physical the in are that disclosure by any constitutional, statutory or law common privilege or confidentiality. the to responsive (1) are that of or Defendants the of any of custody physical or possession physical 61 requests records seeking essent public several subvendors Ninjas’ Cyber and Ninjas, Cyber Ken Bennett, State of Secretary former and Liaison Audit Senate Senate, Arizona the Petersen, are private companies. in carrying out the Audit. Cyber Ninjas in turn has engaged several subvendors, all of which the services of Cyber Ninjas, a for 24 “ (the election general 2020 3, November the with connection in Senate is conducting an audit of voting equipment used and ballots cast in Maricopa County

. The Defendants have produced, or will produce, to the Plaintiff any documents in the the in documents any Plaintiff the to produce, will or produced, have Defendants The . - 26 . Given the logistics entailed in such Plaint the branch, legislative the in inherent powers investigatory the Exercising For largely the same reasons set forth in this Motion, the Defendants take the position as hereto attached is opinion Mikitish’s Judge of copy A PRA the to subject are Records Disputed the extent what to and Whether r obtain, to intend however, not, do Defendants The

iff American Oversight has submitted to each of President Fann, Chairman Chairman Fann, President of each to submitted has Oversight American iff ially ially all relating to documents or the concerning Audit. 1

Either way, the Plaintiff’s claims founder.

See id. (hereafter, the “ the (hereafter,

Plaintiff’srecordspublicrequests

¶ F 28 - ACTUAL profit Florida corporation, to serve as its primary vendor .

Disp

B an uted Records 3 ACKGROUND

undertaking, the Arizo

”).

eview or produce any records any produce or eview

; and (2) not protected from from protected not (2) and ;

Appendix A Appendix Audit na Senate has retained gd r confidential or eged See id. ”). ”). Secretary Bennett Secretary

See - 12

¶¶ . The action action The . 1.01(A)(1).

Compl. 56, 58 Arizona — - and

59,

¶ ¶ 2

28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1

whether and to what extent that objectives. policy public normative or “intent” legislative of notions unarticulated including rubrics, interpretive other all over, controlling and to, superordinate is it others; Effectua a of index reliable most and best Ariz.145, 147, ¶7(2017); bodies,” and hence the Disputed Records are not governed by the PRA. “public or “officers” not are subvendors its and Ninjas Cyber dissipate; claims Plaintiff’s records.” “public entities and wit record” “public a be may that document any obtain to person any by “right” disembodied some secure not does statute The PRA. the of misunderstanding burden. undue that or records” “public are Records Disputed presumptively must be disclosed, absent the some particular claim of privilege, confidentiality, function, governmental a is Audit I. Hogan v. Washington Mut. Bank, N.A. dismissal if “the plai of judgment a enter will but true, be to allegations factual complaint’s the assume will may be granted. before this Court

h whom it may be found. Rather, the PRA obligates two delimited classes of individuals Condensed to its essence, the Plaintiff’s argument appears to be that because the because that be to appears argument Plaintiff’s the essence, its to Condensed The Records of Private Vendors Are Not Subject to the PRA compl any dismiss must Court The “To determine a determine “To ting unambiguous statutory text is not merely one method of exegesis among among exegesis of method one merely not is text statutory unambiguous ting — A. to wit, “officers” and “public bodies” “public and “officers” wit, to

. See See

ntiff should be denied relief as a matter of law given the facts alleged.”

The PRA’s Plain Text Excludes Private Contractors See Ariz. R. Civ. P. 12(b)(6). In evaluating a motion to dismiss, the Court A.R.S. §§ 39 §§A.R.S.

statu

op. ¶ 3 86 83, ¶¶ Compl. see also see te’s meaning, we look first to its to first look we meaning, te’s issue S TANDARD OF TANDARD

-

State v. ChristianStatev. 121, statute’s

is is even justiciable , 230 Ariz. 584, 586 584, Ariz. , 230 A

RGUMENT - 121.01. It is at this interpretive j interpretive this at is It 121.01. aint that fails to state a claim upon which relief which upon claim a state to fails that aint 4

-

enn i te li tx o te statute.”). the of text plain the is meaning 0 Ti prlgs, oee, vne a evinces however, paralogism, This 90.

R EVIEW

— , 205 Ariz. 64, 66, ¶ 6 (2003) (“[T]he (“[T]he (2003) 6 ¶ 66, 64, Ariz. 205 , to preserve and make available available make and preserve to

—

accordingly are the , ¶ 7 , ¶

text.” text.” (2012). (2012).

— regardless of where or or where of regardless State v. State

uncture

quetions

Burbey that that , 243 243 , their

now now See the the

28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1

3 sae f rdn x e. aadn . State v. Gabaldon rel. ex Braden of Estate See generally agreements. intergovernmental through subdivisions political other or counties cities, by stre plausibly be can common”). in quality some have terms thesuggesting context a inassociated are terms several when appropriate but isolation, in determined be “[ of canon the that (stating (2019) 13 ¶ 211, instrumentalities. defini this in catalogued entities the all inhered in any isolated word in Section 39 def intrinsically excludes private business specifically corporations. Indeed, even if any nowhere semantic ambiguity is organization” “public phrase “branch, a nor state” “this the Although state. the of not committee” or council commission, bureau, board, department, is Ninjas Cyber that undisputed be) should certainly A.R.S. § 39 body” in the PRA; it said so with precision: the faceof the from discernable readily methods of statutory interpretation to determine the legislature the

plain state. this of subdivision political any or state this by provided monies expending the of committee p or in or whole council in supported agency, or organization public any and commission, foregoing, bureau, board, department, tax or subdivision any political state, this means body” “Public The Legislature did not leave to judicial conjecture what it meant by the term “public The term “public organization” most likely was intended to envelope entities created encompass conceivably could definition this of facet No art by monies from this state or any political subdivision of this state, or state, this of subdivision political any or state this from monies by art

text -

121.01(A)(2).

f a of A.R.S. § 11

See generally statute

3 tched to encompass a private corporate vendor that was formed formed was that vendor corporate private a encompass to tched

None of the terms in Section 39 Section in terms the of None

is clear and unambiguous there is no need to resort to other other to resort to need no is there unambiguous and clear is - 952.

City of Surprise v. Arizona Corp. Comm’n must be drawn from the context in which it is used is it which in context the from drawn be must - upre dsrc i ti sae ay branch, any state, this in district supported

statute.” (citation omitted)). - 121.01(A)(2), a contextual reading confirms that tional provision are are provision tional

5

n

, 228 Ariz. 323, 325, ¶ 8 (2011) (“When (“When (2011) 8 ¶ 325, 323, Ariz. 228 ,

ony ct, on sho district, school town, city, county, ] oscitur

a

- sociis 121.01(A)(2) is so tensile that it that tensile so is 121.01(A)(2) ined, the modifier “public” “public” modifier the ined, ’ — s intent becaus

a word’s meaning cannot meaning word’s a governmental

ye Nna. t s (or is It Ninjas. Cyber

, 246 Ariz. 206, , Ariz. 206, 246 e its intent is

ois or bodies — is is

28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1

neednl o, n sad i a arms an in stands and of, independently or a into entity contractual private a and institution government a a fuse not that does relationship managerial cognizant remained have likewise contexts similar from arising body.” “public a not entity, corporate private a as identity legal its maintained thus and [contract],”the of requirements the to subject it of itself, it neve government the by” undertaken be well as could that function a out carrying as viewed be thereof.” manifestation concrete of constituent organic an as law case this in question interpretive explaining disagreed, Appeals of Court me the within body” “public a hence and latter, the of “instrumentality” or “institution” an was hospital a administer to district non a that argued plaintiff Ass’n Hosp. Cmty. Yavapai v. Inc. Newspapers, agencies government of providers service or agents as acting vendors Private omitted)). citation a extend or stretch[,] the by indicated as legislature the of intent 201 (App. 12 ¶ 435, 432, PRA words that are not there. contractors or vendors are “public bodies” position in a “public body”). appointed or elected an occupies who individual an as “officer” an (defining 121.01(A)(1) pri officers, government. And because Cyber Ninjas is not a “public body,” it follows that its individual h Panifs position Plaintiff’s The ae a cnim wa te li tx idpnety ran. ordains. independently text plain the what confirms law Case

simply cpl, mlye, n sbgns r nt ofcr. “officers.” not are subagents and employees, ncipals, rtheless rtheless was “formed independently of the District and operates independently

are not “public bodies.”

statute 9) (“We will not will (“We 9) -

rft oprto ta hd otatd ih seil taxing special a with contracted had that corporation profit to matters not falling within its express provisions.’” (internal (internal provisions.’” express its within falling not matters to

See Hiskett v. Lambert in & for County of Mohave — Id.

— the state or a political subdivision which functions as a a as functions which subdivision political a or state the i.e.

that the statute encompasses only entities “created by by “created entities only encompasses statute the that at 39. While the non the While 39. at , that private corporations serving as government government as serving corporations private that , aning of the Open Meeting Law. Law. Meeting Open the of aning

—

- — read length contractual relationship with, the state state the with, relationship contractual length can be sustained only by interpolating into the 6 in reasoning that engrafts engrafts that reasoning in

statute

into See id. See , 1 ,

63 Ariz. 33 (App. 1989). There, the There, 1989). (App. 33 Ariz. 63 a

itself, nor will we ‘inflate, expand, expand, ‘inflate, we will nor itself,

statute

Opinions of the Attorne the of Opinions - profit corporation “can certainly “can corporation profit

anything not within the clear the within not anything

See See id. See easily

A.R.S. e Prescott See

at 38. The The 38. at , 247 Ariz.

y General y no the onto §

39 -

28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1

single amalgamated “public body.” body.” “public amalgamated single are subvendors its and Ninjas Cyber intent”). legislature’s the determine to interpretation the end. an at is arms on relationship government a by engaged companies private of documents internal records. public constituting documents of “custody” a federal agency.”). mutually a have did Service Wildlife] beneficial relation and Fish [federal the and corporation] profit Garstang v. U.S. Dept. of Interior H. (quoting .” . . . grants FOIA . . . does not apply to private companies [or] persons who receive federal contracts or Wild, Inc. v. United States Forest Serv. ag federal a by obtained been not have data those of copies when [FOIA] of meaning the within records’ ‘agency not “are agreement grant federal a to party a was that organization” controlled privately a by possessed and Forsham v. Harris (“ Act Information of Freedom the of meaning the within records” “agency themselves not are generally agencies government of contractors private not). the meaning of the Open Meeting Law, the corporate boards of charter school operators are within bodies” “public are boards governing school charter while that (advising 2000) 2,

plain

Federal precedents are similarly instructive; docume instructive; similarly are precedents Federal Because the PRA’s definition of “public body” is facially unequivocal, the inquiry the unequivocal, facially is body” “public of definition PRA’s the Because B. have that bodies” “public to only extend PRA the of commands the short, In

text

f the of Internal Vendor’sGovernment Every Expose to IntendedLegislatureNever The See

ship, that relationship alone does not transform the private entity . . . into , 445 U.S. 169, 171 (1980) (holding State v. Griffin v. State

- statute length contractual terms lie beyond the statute the beyond lie terms contractual length

Files to Public View . e. o 112 No. Rep. R.

is ambiguous do we resort to to resort we do ambiguous is , 297 F.3d 745, 751 (8th Cir. 2002) (“Although the [non , 250 Ariz. 651, ¶ 25 (App. 2021) (noting that “only if “only that (noting 2021) (App. 25 ¶ 651, Ariz. 250 , See generally See , 878 F.3d 1258, 1261 (10th Cir. 2018) (“In general,

- 7 ency subject to the FOIA”); FOIA”); the to subject ency 8, t (2012)); 5 at 689,

Ariz. Op. Atty. Gen. Atty. Op. Ariz. See that that “written data generated, owned,

A.R.S. §§ 39 §§ A.R.S. FOIA nts created and maintained by maintained and created nts te mtos f statutory of methods other

tt o Msor, x rel. ex Missouri, of State ”), 5 U.S.C. § 552. 552. § U.S.C. 5 ”), ’s parameters

agency - 121, No. I00 No. Rocky Mountain Rocky

- in a business business a in 121.0 - . 009 (May 009

1. The 1. See -

28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1

4 not “public bodies,” and thus their internal records are not subject to compulsory disclosure; progressive groups and don’t disclose funding.”). non themselves call they an public two by formed Complicitywas track Ex at Top of available Hiring Track to Group sector private memory alive in this new era, the organization trump Agencies https://www.usatoday.com/story/news/politics/2017/03/13/new Trump “having public, the from to has county largest state’s the Indeed, adm election its of components substantial outsourced effectively government. state of facet every virtually in counsel legal outside to management, benefits employee to equipment, IT from ranging of array an furnish to vendors outside of thousands not if hundreds upon on rely agencies municipal and county State, prudent. and deliberate was PRA the there is good reason to conclude that the Legislature’s exclusion of private contractors from preferable.”). is policies public legitimate competing two of which about arguments of favor in language Schneider intended,” been have or to distend statutory language beyond its plain meaning “simply because that’s what must “go beyond the statute to contrad of imperatives While 88. ¶ courts PRA, the Compl. undergird certainly transparency know.” to right public’s “the of notions hoary conclus the overcome cannot Plaintiff the

d Accountable.US, which specialize in public records requests and research. Although research. and requests records public in specialize which Accountable.US, d two - ex -

administration And even if some surmised legislative intent were a relevant interpretive lo interpretive relevant a were intent legislative surmised some if even And America “non putatively this While private corporation

- deep ties to Democrats to ties deep trump , 1 Ai. 9, 9, 2 (p. 06 (W d nt disregard not do (“We 2006) (App. 28 ¶ 298, 292, Ariz. 212

former former - https://www.bloomberg.com/news/articles/2021 n Oversight n aides

was founded weeks after President Trump’s inauguration by individuals by inauguration Trump’s President after weeks founded was

,

- - entering id. records public

at 38 (internal citation omitted); citation (internal 38 at USA - s atsn te cut infcn safn fo Dmcai and Democratic from staffing significant count they partisan, , Dominion Voting Systems Voting , Dominion , which somewhat ironically conceals its own funding sources sources funding own its conceals ironically somewhat which ,

officials with whom it disagrees, it whom with officials - - sunshine

private . ict ict its clear import,” ” Donovan Slack, Donovan ” - partisan,” T ODAY - - rm Aides Trump - sector interest groups in Washington, American Oversight Oversight American Washington, in groups interest -

week/99034426/ ive force of the plain statutory text by appeals to to appeals by text statutory plain the of force ive , Mar. 13, 2017, 2017, 13, Mar. , 4

8

Compl. currently is

( “ h Cmag Aant Corporate Against Campaign The do not do

, Legal Watchdog Launches to Hound Hound to Launches Watchdog Legal Prescott Newspapers B ¶

LOOMBERG and Runbeck Electionand Runbeck Services 1, Plaintiff is singularly fixated on fixated singularly is Plaintiff 1, . Keeping Senator McCarthy’s McCarthy’s Senator Keeping .

busy invoke amorphous aspirations to to aspirations amorphous invoke see also see

blacklist - - see legal 01

inistration infrastructure infrastructure inistration

-

State ex rel. Thomas v. Thomas rel. ex State N 26/watchdog Ben Brody, Ben

goods and services and goods - EWS watchdog ing ing from America’s , Jan. 26, 2021, 2021, 26, Jan. , , 163 Ariz. at 40, vial at available

plain - seeks - Watchdog group

statutory destar, - . -

to — — -

28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1

6 5 Cyber Ninjas and perceived Republican interests, the interests, Republican perceived and Ninjas Cyber applies. of question antecedent the resolve not does law the follow to covenant fact in PRA the applic election 2020 the of administration the of out arising proceedings and matters various in State of Secretary Ninjas’ internal emails and files (not to mention those of Cyber Ninjas’ subve claims Ninjas’rec debilitated by at least three defects. constructive,” or indirect, “actual, claims, parties’ third of defense the in Senate the Ninjas’ II. Qasimyar the PRA, and courts “are not at liberty to the question of wisdom that decision.” legislative codify to chose Legislature the framework the not is it but matter, policy a as desirable be not may or may regime recordkeeping draconian a Such record. public a as disclosure government co has that possession its in document individual each and PRA, the of auspices the under swept be stat any of vendor other every Dominion of files be so easily contained. If the Plaintiff prevails, then the internal emails, databases and other

able laws,” Compl.

litf as pit t Cbr ijs cnrcul biain o cml wt all with “comply to obligation contractual Ninjas’ Cyber to points also Plaintiff Brockelman Coppersmith First Cyber because that argument an be to appears what adumbrates Complaint The Not Make Its In Does Senate the With Contract Ninjas’ Cyber in Clause Indemnification The in in litigation

indemnification agreement agreement indemnification a substantial nexus, substantial a

v. MaricopaCounty ords only if and to the extent it is necessary to necessary is it extent the to and if only ords , the indemnification clause affords the Senate the option of obtaining Cyber Cyber obtaining of option the Senate the affords clause indemnification the , ntract is “applicable” is .

. It does not permit the Senate to demand

and Runbeck and

will be presumptively subject to ternal Files “Public Records” “Public Files ternal ¶¶

37, 81, but this argument see Griffis v. Pinal County Pinal v. Griffis see e, county or local government agency or unit in Arizona will Arizona in unit or agency government local or county e, , 250 Ariz. 580, ¶ 31 (App. 2021). 2021). (App. 31 ¶ 580, Ariz. , 250

to Cyber Ninjas is the very question in dispute; dispute; in question very the is Ninjas Cyber to , the undersigned law firm, the Plaintiff’s law firm, law Plaintiff’s the firm, law undersigned the ,

PLC id. id.

with the Senate obligates the former to cooperate with cooperate to former the obligates Senate the with

¶ 82, possession of those materials. those of possession 82, ¶ w

as engaged as 9

see by the State the by indefinite indefinite preservation and ultimately is is an import of the ruling it seeks will not not will seeks it ruling the of import

, 215 Ariz. 1, 4, ¶ 10 (2007), 10 ¶ 4, 1, Ariz. 215 , Compl. jointly

exercise in circularity. Whether carte blanche

¶¶ 36, 81, the Senate has Senate the 81, 36, ¶¶

defend against third party third against defend as outside counsel outside as

what 6

access to Cyber

This theory is theory This ndors) simply

law actually actually law a generic a to to

5 to its its to

and the the

in in

28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1

to fulfill various public records requests. Further, a special action special a Further, requests. records public various fulfill to Scottsdale were public records, the Court of Appeals recently explained of City the with agreement its to relating files internal Scottsdale’s TPC the that argument apply to broadly”). intended was it suggests Act] Records Public [California the of history or or local agency has contracted to access into a disclosable public record. Nothing in the text othe conclude To control. or possession of form a to equate not does data the ‘access’ can agency] [the private entity constitutes propo the supporting authority legal 539 528, omitted); citation (internal have come into the agency’s Wild could a from documents certain organization rendered those materials subject to FOIA, procure “it does not mat to right contractual agency’s federal a that notion the rejecting when explained Circuit Tenth the As FOIA). (discussing 186 at merely which records to not and obtained, be controlled by is officer public a of action the if that is rule general a generally See discretionarwholly a exercise officialtopublic a compel to employed PRA, the by

mandamus , 878 F.3d at 1263. Rather, legal “control” of records attaches when “the materials materials “the when attaches records of “control” legal Rather, 1263. at F.3d 878 ,

possess the documents by requesting them from [the counterparty] Second the by Unpersuaded proposition. obvious this embraced have courts Arizona – 40, 242 Cal. Rptr. 3d 724, 732 724, 3d Rptr. Cal. 242 40,

action is designed to compel performance of an act the law requires, ‘[t]he requires, law the act an of performance compel to designed is action rwise would effectively transform any privately any transform effectively would rwise

, and more to the point, the PRA “applies to records which have been been have which records to “applies PRA the point, the to more and , see esn v Harris v. Sensing

mandamus.’” (citations omitted)).

... 39 § A.R.S.

a form of constructive possession,” adding that the “mere fact that see also see possession - 2.2A, n aotd y h Complaint the by adopted and 121.02(A), , 217 Ariz. 261, 263, ¶ 6 (App. 2007) (“Because (“Because 2007) (App. 6 ¶ 263, 261, Ariz. 217 ,

Anderson sition that an agency’s right to access the records of a of records the access to right agency’s an that sition

in in the legitimat – 33 (2019) (remarking that plaintiff “has cited no cited “has plaintiff that (remarking (2019) 33 could have been have could 10

-

Barker v. Superior Court Superior v. Barker

discretio

e conduct of its official duties.”

obtained.” obtained.” - nary held information that a state a thatinformation held

—

that the vehicle prescribed prescribed vehicle the y contractualoption.y ter ter that the [agency]

Forsham . : discretion ” , 31 Cal. App. 5th 5th App. Cal. 31 ,

Rocky Mountain — hr party third ant be cannot , 445 U.S. U.S. 445 ,

may not may in fact in

Id. so

28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1

7 111(c) R. Ct. Sup. Appendix 2 Ariz. to pursuant authority persuasive vend its of virtue by constitutional difficulties”). (2006) 28 terrain. constitutional onto venture not III. present any justiciable dispute, for reasons discussed to fails Complaint its then itself, Senate the of those records internal its renders Senate of A.R.S. Senate the transmute limited certain under records internal Ninjas’ county’s sheriff’s office). may have maintained in its possession,” but not records it (indicating that county had responsibility to search potentially responsive public records “it 2020); Scottsdale of City v. Stuart

7 ro i te ueir or’ rln ta th documents. that ruling court’s City’s superior the in error the establishes an only [agreement] the of City’s 6.1.12 section But documents. these keep and obtain to “obligation” an had City the that proceedings, trial control of a public official . . . . Stuart argues on appeal, as he did in the new “public a as qualify To cp o te eoadm eiin in decision memorandum the of copy A But even if the Court were to indulge the notion that Cyber Ninjas’ internal records, need Court the claim, Plaintiff’s the of disposes PRA the of text plain the Because The Senate’s Compliance Third In

see also Phoenix New Times, L.L.C. v. Arpaio

short, the Senate’s hypothetical and unexercised right to obtain certain of Cyber Cyber of certain obtain to right unexercised and hypothetical Senate’s the short, obligation § 39

(commenting that the court will “construe statutes, when possible, to avoid avoid to possible, when statutes, “construe will court the that (commenting . , if the Plaintiff is correct that Cyber Ninjas’ agency relationship with the the with relationship agency Ninjas’ Cyber that correct is Plaintiff the if ,

possession right - 121.

to receive the records from TPC; it does not create create not does it TPC; from records the receive to

for the City to keep and hold such records. In sum, we find no no find we sum, In records. such hold and keep to City the for or status, effectively are those of the Senate itself, this lawsuit then lawsuit this itself, Senate the of those are effectively status, or in to the “custodian” of all the Disputed Records, within the me the within Records, Disputed the all of “custodian” the to

and that the City had no obligation to keep and release the

, 1 CA 1 ,

record,” a document must be in the in be must document a record,” w - CV 18 CV ith the PRA PRA the ith

See generally See - 0154, 2020 WL 7230239, at *9 (App. Dec. 8, Dec. (App. *9 at 7230239, WL 2020 0154, 11

(and inapplicable) (and I Stuart s a Nonjusticiable Question , 21 next. rcrs ee o i the in not were records e

State v. Gomez v. State wih h Dfnat ct a a as cite Defendants the which ,

7 Ariz. 533, 540, ¶ 22 (App. 2008) already

(1)(C)

had transferred to another

circumstances does not does circumstances , is attached hereto as as hereto attached is ,

possession , 212 Ariz. 55, 60, ¶ ¶ 60, 55, Ariz. 212 ,

and

aning

28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1

confronts a more intractable obstacle. That the Senate and its members are a “public body” or violated “does functions internal has its of conduct government the in obligation of statutory ostensible an neglected branch one that assertion An dismissal. necessitates those for respect executive, or legislature the of domain internal the into incursions entail will claim a of adjudication when that recognition a in founded is It we lack subject matter jurisdiction to decide that question”) (internal citation omitted) question, political a presents case a “if that concluding and court,’” this in made be never wh or political, nature their in ‘[q]uestions, that observation Marshall’s Justice Chief in expression found v. Caterpillar, Inc. questions.” Napolitano government,” of branches political the of one resolution. Recognizing that such cases “inv with entwined innately precedential authority The 7. p. at 1 Appendix question.”political nonjusticiable a is [it] with compliance “legislature’s appl undoubtedly Open the Law of terms Meeting the although that, holding in distinction engrained this recognized branch in the conduct of its own meetings and recordkeeping. Another division of th the when disintegrates presupposition this claim, them subs the answer not does PRA the of meaning the within respectively, officers,” “public and idiary idiary question of . While normally the the normally While . In In short, the political question doctrine is a self so are law, of questions presenting nominally while that, disputes certain are There A. Puente

23 rz 42 45 ¶ (2006) 7 ¶ 485, 482, Ariz. 213 , Kromko v. Ariz. Bd. of Regents Overvie ich are, by the constitution and laws, submitted to [another branch], can can branch], [another to submitted laws, and constitution the by are, ich

or’ reasoning court’s , 503 F.3d 974, 980 (9th Cir. 2007)

— w of the Political Question Doctrine who institutional extends in equal forceto the PRA.

may permissibly enforce the PRA’s ostensible mandates court ’s remedial powers are a fixed premise of any cognizable cognizable any of premise fixed a are powers remedial ’s y —

dimensions as to render them unamenable to judicial to unamenable them render to as dimensions hc drvd rm ln lnae f eta and textual of lineage long a from derived which o h Lgsaue a ipt controver dispute a Legislature, the to

, 216 Ariz. 190, 192, ¶ 12 (2007) 12 olve decisions that the constitution commits to

, “courts refrain from addressing political political addressing from refrain “courts , judiciary Forty -

imposed imposed limitation on judicial power. (“The (“The political question doctrine first

- eet Lgsaue f tt v. State of Legislature Seventh

is asked to coerce a co a coerce to asked is

oqa branches coequal ; see also Corrie ting the the ting ordinate

e against

Court .

28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1

not give license to one of the coordinate branches to correct to branches coordinate the of one to license give not “public bodies” to which the PRA applies, Mecham v. Gordon here resonate that words in in the context of Senate impeachment trials, the Constitution itself). by prescribed limitations other any to course, of (subject, body that in functions indefeasibly recordkeeping and investigatory legislativ each of operations the for responsibility that is provisions the maintenance of “journals” recording the house’s actions. The aggregate import of these envisages 10 Section and prescribe,” may house each as penalties such under and manner of procedure.” Section 9provides that order eachhousemay its proceedings own “in rules own its “determine to Legislature the of house each entitles Constitution Arizona the responsibili acts.” their for responsible are officers public all whom to people the from or itself branch that within o ttt cn uesd ec lgsaie os’ cntttoa rgt and right constitutional house’s legislative each supersede can statute No B. It is no answer to say that the Legislature is included in the catalogue of of catalogue the in included is Legislature the that say to answer no is It prohibits us from intervening in the Constitution our by required powers of separation The use. may it language should be, what it should submit to the people, what bills it may draft or what legisl the tell not will We government. our of branches other the of functions legitimate the in interference judicial Senate’s prerogatives in this area. Article 3 of the state Constitution prohibits Senate. the trial impeachment leaves wisely Constitution The Court Supreme Arizona the vein, this In

ty to govern its own records and proceedings. Article IV, Part 2, Section 8 of of 8 Section 2, Part IV, Article proceedings. and records own its govern to ty Renck v. Superior Court of Maricopa Cnty. Exclusively by the Legislative House Controlled Are Documents Legislative of Disclosure and Retention The

Absent

, 156 Ariz. 297, 302 (1988). (1988). 302 297, Ariz. , 156

, cer osiuinl adt, e eue o sr the usurp to refuse we mandate, constitutional clear a

see

legislative 13 see

A.R.S. § 39

ature when to meet, what its agenda its what meet, to when ature

—

— Ariz. Const. art. VIII, pt. 2, § 1

r vse etrl, xlsvl and exclusively entirely, vested are considering a cognate grant of authority of grant cognate a considering

process.

, 66 Ariz. 320, 326 (1947) 326 320, Ariz. , 66 - 121.01(A)(2). “A statute or rule,

procedures [it]. Correction comes from from comes Correction [it].

e house e

and

— rules to include its its include to —

observed, to to .

such

28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1

8 of course, ‘cannot circumvent or suppla or circumvent ‘cannot course, of require to judiciary the of function the not is It justiciable. not is case this in 21 Alabama Constitution, the own its establish to 744, 751 (Ala. 2013) (“Because the Alabama Constitution gives the haveconcludedWe thatthisquestion justiciable not is .” . . . vio alleged legislature’s the whether is us Law applies to the legislature. By the statute’s express terms, it does. The question before (N.H. 2005) itself.”). stateconstitution the from is limited only by the express or implied restrictions on it contained in or necessarily arising C 16A Assembly”); General the of operations internal the with interference an be indeed would documents, such of disclosure order then to and product, work own its question political justiciable apply to the Legislature but finding that its application to actual documentsto present non Koch Indianav. ofCoal. (inte procedures.” those or with contradict interfere the nor to judiciary, power the hold the branch, executive the neither of department a services, senate, general of department the to issue the of commitment existenc constitutional the to Due proceedings. of rules its determine constitutionally the within falls confidential question Dwyer (or nonjusticiable. act are records enactments) equivalent public jurisdiction’s the with compliance legislature’s the concerning house’s legislative each into, subsumed and constitutional prerogative to to, subordinate are necessarily PRA Fell

ONSTITUTIONAL ONSTITUTIONAL , 210 Ariz. 427, 431, ¶ 13 (App. 2005) (internal citation omitted). The provisions of the , 542 N.W.2d 491, 503 (Iowa 1996) (“The senate’s decision to keep the records in in records the keep to decision senate’s (“The 1996) (Iowa 503 491, N.W.2d 542 , o peiey hs esn cut i svrl te sae hv hl ta disputes that held have states other several in courts reason, this precisely For See also See

(“ We emphasize that the question before us is not whether the Right

Hughes L

A procedural rules and because the because and rules procedural W

§ 286 (“Theauthority286 § stateofa legislature isplenaryits andextent

, 51 N.E.3d 236, 242 (Ind. 2016) (construing public records act to to act records public (construing 2016) (Ind. 242 236, N.E.3d 51 , v. Speaker of the N.H. House of House N.H. the of Speaker v.

legislature’s

, reasoning that “to define for the legislature what constitutes constitutes what legislature the for define “to that reasoning , order its own proceedings. 8

alleged violation of the

nt . nt lation of the Right the of lation 14

. e Ds Moine Des See

. constitutional requirements.’” requirements.’” constitutional .

rnal citations omitted)); rnal citations omitted));

Open

-

rne pwr f h snt to senate the of power granted Reps.

o a etal demonstrable textually a of e Meetings ); Rgse & rbn C. v. Co. Tribune & Register s - to

Ex parte Marsh parte Ex Open

- , 876 A.2d 736, 744, 746 746 744, 736, A.2d 876 , Know Law is justiciable. is Law Know

legislature

Meetings Act must yield to the to yield must Act Citizens Action

A the the authority

, 145 So. 3d 3d So. 145 , Act or Rule M Fragoso v. Fragoso - . to

J UR - Know .

2 D -

28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1

its of course the in legislature the by enactments.’” (internal citation omitted)) with complied been have statutes procedural or rules operating internal whether determine not will court ‘this statutes, procedural relevant when ex rel. Ozanne v. Fitzgerald state consti violate would Assembly General another by passed the rules procedural with “[b]inding Legislature law, meetings open the of scope the within was legislature that assuming and its committees.” government the of branch Legislative the to applicable not is Law’ ‘Sunshine the that hold for rule the that argued be reasonably can head it that into comes prerogative”); judiciary the ac what and meeting committee legislative legislators, observing that “a judicial determination of this matter hinges on the meaning of 1021 (Fla. 1984) (deeming nonjusticiable claims arising out of alleged “secret meetings” of Meetings Act or [a legislative rule] to be nonjusticiable.”); Open the violated have Legislators the whether question the regard we authority, of grant this within falls closed or open be shall meeting caucus or meeting committee legislative wh of question the because and procedure, of rules own its for provide to authority P.2d 333, 339 the Sunshine Law, the act would not bind a subsequent General Assembly.”). S.W 46 itself.”); Constitution the by only limited is Legislature the of authority The undoubted. course, of is, done be cannot this That one. future a of acts the bind or Estate v. Hubbs proceedings. own its of conduct the control to power sovereign not did Legislature the of iteration one of intent defining the term “public body,” Thirty the that assuming Even itself. legislature the to intrinsic privileges constitutional vindicating also but equilibrium,

legis

legislation nmtn ti picpe s cnen o onl not concern a is principle this Animating o e la, h Aioa eae s omte t rgru tasaec ad to and transparency rigorous to committed is Senate Arizona the clear, be To

.3d at 770 (“[E]ven if the Legislature intended to bind itself when it passed the the passed it when itself bind to intended Legislature the if (“[E]ven 770 at .3d its own procedures that is in conflict with a statute formerly enacted. We therefore therefore We enacted. formerly statute a with conflict in is that procedures own its lature tution’s] grant of the right to the Legislature to determine its own rules.”); rules.”); its own to determine Legislature to the right of the grant tution’s] -

40 (Alaska 1987) (“[B]ecause the constitution commits to the legislature the to to follow its own rules.”); Coggin v. Davey v. Coggin , 31 Ariz.

was challenged based on allegations that the legislature did no

);

Mayhew v. Wilder

252, 264 (1926) (rejecting “an attempt by one Legislature to limit , 798 N.W.2d 436, 440 (Wis. 2011) (“As the court has explained

- Second Legislature wished to bind itself to the PRA when PRA the to itself bind to wished Legislature Second , 211 S.E.2d 708, 710 708, S.E.2d 211 , see - to

1 - 975 Ariz. Session Laws ch. 147, § 1 (S.B. 1338), the ed ofit ih h lgsaie rulemaking legislative the with conflict head

House or Senate cannot pass an internaloperatingan pass cannotSenate or House , 46 S.W.3d 760, 770 (Tenn. Ct. App. 2001) (even . Abood v. League of Women Voters of Alaska

tivity constitutes such a meeting. At this point, point, this At meeting. a such constitutes tivity 15

— and could not could and –

11 (Ga. 1975) (“We do not believe not do (“We 1975) (Ga. 11 wt peevn a interbranch an preserving with y Moffit t v. Willis

— abridge the institution’s the abridge See

generally see also Mayhew also see , 459 So.2d 1018,

t follow the

Higgins’ ether a ether State , 743

[the [the ,

28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1

ooig h drcie of directives the honoring Part are subject to public disclosure is textually committed to the Arizona nonjusticiable political questions because whether and to what extent legislative documents with the are PRA compliance the Defendants’ in that (2) concerning the alternative, claims with prejudice could neve and not, does PRA The Constitution. Arizona the of IV Article by Senate Arizona the in legislative records are subject to public disclosure devolves to the plenary discretion vested 39 § A.R.S. “custody,” have fact in does Senate Arizona the that conclude should Court the if corporate vendors is impelled by a respect for the PRA, not a desire to flout it. Nevertheless, their above, forth set reasons the hundreds of records to the Plaintiff and - 121, of the Disputed the of 121,

2, For the foregoing reasons, the Court should Court the reasons, foregoing the For RESPECTFULLY SUBMITTED §§

8 r, abrogate this foundational attribute of legislative sovereignty. sovereignty. legislative of attribute foundational this r, abrogate - 10 of the Arizona Constitution.

on the grounds that

Records, then the question of whether and to what extent such extent what to and whether of question the then Records,

the PRA. Indeed, the Defendants have already produced produced already have Defendants the Indeed, PRA. the

(1) (1) the Records are Disputed not reluctance C are

By: ONCLUSION

this this

working assiduously to process

16 Attorneys for Defendants

Phoenix, Arizona 85003 649 North Fourth Avenue, First Floor Thomas Basile Kory Langhofer PLLC STATECRAFT

9th to commandeer the internal files of private private of files internal the commandeer to

/s/Thomas Basile /s/Thomas

day of

dismiss this action in its entirety and entirety its in action this dismiss

June

, 202

1 .

subject to the PRA, or

Senate by Article IV,

many

more. For

,

28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1

By: Attorneys for Plaintiff [email protected] [email protected] [email protected] Phoenix, 2800 COPPERSMITH D. Roopali Keith Beauchamp a Notice ofElectronic Filing to the following registrants: TurboCourt the using Office Clerk’s the to document

Andrew Gaona _/s/Thomas Basile Thomas Basile

North I hereby certify that on on that certify hereby I

H. Arizona 85004

Desai Central

BROCKELMAN BROCKELMAN PLC

Avenue,

CERTIFICATE OF SERVICE

Suite

ue 9 June

1900 202 ,

TurboCourt System for filing and transmittalof and filing for System TurboCourt

1

, I electronically transmitted the attached attached the transmitted electronically I ,