ALEC Lawsuit

Attorneys Heather Hamel, left, and Aya Saed discussing in December the lawsuit they filed accusing members of the Arizona Legislature attending a conference of violating the state's Open Meeting Law. (Capitol Media Services photo by Howard Fischer)

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PHOENIX -- The attorneys for groups suing the Arizona Legislature over claimed violations of the state's Open Meeting Law are accusing state officials of playing a bit of legal hide and seek.

Legal papers filed in Maricopa County Superior Court claim that the Attorney General's Office refused to accept service of the complaint filed against the Legislature.

Attorney Heather Hamel said in the papers that a process server seeking to deliver copies of the lawsuit to Senate President Karen Fann and House Speaker Rusty Bowers got a similar response. And Hamel said that Krystal Fernandez, the House Rules attorney, also turned away the process server saying"there is no such entity as the Arizona State Legislature.''

What makes all this important is that the organizations that filed suit in December can't get the case before a judge until they show that the defendants -- in this case, the state legislature -- have been served with copies and given a chance to respond.

So now Hamel and the legal team have gotten permission from Judge Connie Contes to do something a bit different: mail the complaint to the offices of Fann, Bowers and Attorney General Mark Brnovich. And once that is done, that paves the way for the next step in the litigation.

There was no immediate response from officials at the Senate or House. A spokesman for Brnovich said that his office is not named in the lawsuit.

"We're not the attorneys for the legislature,'' said Ryan Anderson.

Hanging in the balance is the accusation that state lawmakers are illegally meeting behind closed doors with special interests in a way that violates Arizona's Open Meeting Law.

Attorneys for the organizations and individuals that filed suit in December charged that there was going to be a quorum of at least five legislative committees attending the annual conference of the American Legislative Exchange Council in Phoenix. That organization, funded largely by corporate interests, serves as a clearinghouse of sorts for proposed changes in state laws across the nation, changes that can wind up being formally adopted by the Legislature.

It is that process, the lawsuit states, which shuts the public out of the process at the earliest stages of amendments to state law. More to the point, the fact that there is a quorum of a committee present means that the first action on the legislation effectively occurs behind closed doors.

The conference is now over. But the lawsuit asks Contes to issue an order enjoining any quorum of any legislative committee from attending conferences of ALEC or future organization without complying with open meeting laws.

Aya Saed of the Center for Constitutional Rights, who also is representing the plaintiffs, said the law generally requires all meetings be open to the public. There are exceptions to allow for executive sessions, for only for certain specified purposes like getting advice from an attorney and personnel matters.

What happens at ALEC meetings, Saed said, are de facto unannounced executive sessions of several legislative committees, complete with a quorum.

Complicating matters, she said, those closed-door sessions give challengers no way of knowing exactly what went on, creating what the lawsuit calls a "circular impossibility'' for someone to say that a specific meeting was illegal. So what this lawsuit seeks to do is turn the legal tables.

"We're essentially shifting the burden of proof and demanding that they tell us who it is and what it is they're discussing,'' she explained, saying it is now up to lawmakers to prove they were doing nothing illegal behind closed doors.

When the lawsuit was filed, Bill Meierling, chief marketing officer for ALEC, called the lawsuit -- and a press conference to announce it "a PR stunt.''

Meierling did not dispute that ALEC is funded by business interests whose lobbyists and executives attend the sessions and are seeking a role in the education of lawmakers. But he said there is nothing exclusive about ALEC membership, saying any interest is free to join the dues-paying organization.

He also said that ALEC meetings are open to the media for free, and to anyone else who wants to pay the registration fee. General sessions are streamed live, though the individual committee meetings are not.

And Meierling said ALEC sees itself as a forum to educate lawmakers. about "issues of importance,'' saying that attendees do not craft legislation or even consider it.

The challengers, however, say they have evidence to the contrary.

In the lawsuit, they said that Russell Pearce, then a state senator from Mesa, drafted what would become SB 1070 at an ALEC taskforce meeting. That legislation, approved in Arizona in 2010, included several provisions designed to give Arizona police more power to enforce federal immigration laws.

Parts of that statute have since been struck down by federal courts. But several provisions remain intact, including a requirement for police, when reasonable, to check the immigration status of those they have stopped for any other reason.

And the legal papers claim Pearce was working alongside officials from Corrections Corporation of America, a company that runs private prisons and immigration detention centers nationally.

The lawsuit also claims that ALEC played an "integral role'' in crafting what became a 2016 state law which sought to deny public contracts to firms that refused to avow they would not boycott Israel or companies that do business there. That law was later struck down by a federal judge though legislators subsequently adopted a slightly different version that has yet to be challenged.

When the lawsuit was first filed, House GOP spokesman Andrew Wilder called it "a politically driven and legally meritless lawsuit brought by far-left activists.'' He said lawmakers from both parties attend a wide variety of policy conferences.

There was no response at the time from Senate Republicans.