David Welch v. Cochise Board of Supervisors ( 2021 )

IN THE
SUPREME COURT OF THE STATE OF ARIZONA
DAVID WELCH, INDIVIDUALLY AND ON BEHALF OF ALL CITIZENS OF
COCHISE COUNTY, PRECINCT FIVE,
Petitioner/Appellant,
v.
COCHISE COUNTY BOARD OF SUPERVISORS, PATRICK G. CALL, ANN
ENGLISH, AND PEGGY JUDD,
Respondents/Appellees.
No. CV-20-0322-PR
Filed September 2, 2021
Appeal from the Superior Court in Cochise County
The Honorable Monica L. Stauffer, Presiding Judge
No. S0200CV201900060
REVERSED AND REMANDED
Opinion of the Court of Appeals, Division Two
250 Ariz. 186 (App. 2020)
AFFIRMED IN PART; VACATED IN PART
COUNSEL:
David L. Abney (argued), Ahwatukee Legal Office, P.C., Phoenix; and D.
Christopher Russell, The Russell’s Law Firm, PLC, Sierra Vista, Attorneys
for David Welch
James M. Jellison (argued), Jellison Law Offices, P.L.L.C., Carefree,
Attorneys for Cochise County Board of Supervisors, Patrick G. Call, Ann
English, and Peggy Judd
Mark Brnovich, Arizona Attorney General, Joseph A. Kanefield, Chief
Deputy and Chief of Staff, Brunn “Beau” W. Roysden, III, Solicitor General,
Michael S. Catlett (argued), Deputy Solicitor General, Katherine H. Jessen,
Assistant Attorney General, Phoenix, Attorneys for Amicus Curiae Arizona
Attorney General
DAVID WELCH V. COCHISE BOARD OF SUPERVISORS ET AL.
Opinion of the Court
Nicholas D. Acedo, Struck Love Bojanowski & Acedo PLC, Chandler,
Attorneys for Amici Curiae Arizona Counties Insurance Pool, The County
Supervisors Association of Arizona, and The Arizona School Risk Retention
Trust, Inc.
CHIEF JUSTICE BRUTINEL authored the opinion of the Court, in which
VICE CHIEF JUSTICE TIMMER, and JUSTICES BOLICK, LOPEZ, BEENE,
MONTGOMERY, and JUDGE BAILEY joined. *
CHIEF JUSTICE BRUTINEL, opinion of the Court:
¶1 Arizona’s open-meeting and conflict-of-interest (collectively,
“public accountability”) laws grant “[a]ny person affected by” either “an
alleged violation” or “a decision of a public agency” standing to enforce
their respective requirements. A.R.S. §§ 38-431.07(A), -506(B). We hold that
these provisions broadly confer standing based upon a claimant’s interest
in preserving the values of transparency and accountability that these laws
enshrine, not because of a claimant’s equitable ownership of tax revenues.
¶2 The open-meeting law also provides that “[a]ll legal action”
taken in violation thereof is “null and void” unless the public body later
takes the proper steps to “ratify” that action. A.R.S. § 38-431.05(A)–(B). We
hold that ratification only validates the initially void action; it does not moot
an open-meeting claim based upon the underlying violation.
¶3 Accordingly, we vacate those portions of the court of appeals’
opinion analyzing the laws’ enforcement provisions through the lens of
taxpayer standing, affirm its reversal of the trial court, and remand to the
trial court for further proceedings.
I. BACKGROUND
¶4 It all started with a judicial vacancy. Following the
resignation of the Justice of the Peace for Justice Precinct Five, the Cochise
County Board of Supervisors posted a public notice for a special meeting to
*Due to the retirement of Justice Andrew W. Gould, pursuant to article 6,
section 3 of the Arizona Constitution, Judge Cynthia J. Bailey, Judge of the
Arizona Court of Appeals, Division One, was designated to sit in this
matter.
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DAVID WELCH V. COCHISE BOARD OF SUPERVISORS ET AL.
Opinion of the Court
decide on a selection process and to fill the vacancy. The agenda also
included notice of a possible executive session.
¶5 During the meeting, the Board considered application and
committee-driven appointment processes but eventually opted for a direct
appointment. The Board then went into executive session, returned after
half an hour, and voted 3–0 to table the matter and recess until later that
morning. The Board did not reconvene, however, until the afternoon,
nearly an hour after the noticed time. Supervisor Ann English immediately
moved to appoint Supervisor Patrick Call to fill the vacancy, and the Board
appointed Call as Justice of the Peace by a 2–0 vote, with Call abstaining.
¶6 Two days later, David Welch, a Precinct Five resident and
taxpayer, brought a special action challenging Call’s appointment as a
violation of Arizona’s public accountability laws. See A.R.S. §§ 38-431.01 to
-431.09, -503. The Board responded ten days later by noticing a meeting to
ratify Call’s appointment, see § 38-431.05(B), to which Welch responded the
next day by securing a temporary restraining order (“TRO”) enjoining the
Board from proceeding with Call’s appointment. Nonetheless, Call was
sworn in later that day.
¶7 Shortly after Welch amended his complaint to seek additional
relief, including the removal of the Board’s entire membership from office,
the case was reassigned to a different judge 1 who vacated the TRO and
denied Welch’s motion for further injunctive relief. In the meantime, the
Board noticed and held a ratification meeting and voted 2–0 to ratify Call’s
appointment.
¶8 The trial court subsequently dismissed Welch’s amended
complaint. Most relevant here, the court found Welch lacked standing to
enforce Arizona’s public accountability laws. Additionally, the court
determined that the Board’s ratification of Call’s appointment had cured
any open-meeting violation, thereby mooting Welch’s corresponding claim.
Welch appealed.
¶9 The court of appeals reversed, holding that Welch’s status as
a Precinct Five resident and taxpayer made him a “person affected by”
expenditures made in violation of Arizona’s public accountability laws, see
§§ 38-431.07(A), -506(B), and thus gave him standing to enforce them here,
Welch v. Cochise Cnty. Bd. of Supervisors, 250 Ariz. 186, 192 ¶¶ 13–15 (App.
2020). Those expenses included the salary paid to a justice of the peace. In
1The judge that issued the TRO recused herself after sending an email to a
colleague criticizing Call’s appointment.
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Opinion of the Court
that court’s view, a taxpayer’s interest rests not in the initial decision to
spend taxpayer dollars, but in the legality of those funds’ expenditure and
the value they reap. Id. at 193 ¶¶ 16–17. Nor did the court find Welch’s
open-meeting claim moot. Although the Board’s decision to ratify Call’s
appointment had ensured its effectiveness against a charge that the original
appointment was null and void, sanctions for the original violation
remained available. Id. at 195 ¶ 25 (citing §§ 38-431.05, -431.07(A)). This
petition followed. 2
¶10 We granted review to clarify private claimants’ standing to
challenge alleged violations of Arizona’s public accountability laws and to
decide what effect statutory ratification has on a private claimant’s open-
meeting claim. We have jurisdiction under article 6, section 5(3) of the
Arizona Constitution and A.R.S. § 12-120.24.
II. DISCUSSION
¶11 The parties’ dispute boils down to whether taxpayer standing
suffices to enforce Arizona’s public accountability laws and whether
statutory ratification moots an open-meeting claim. We review such legal
questions de novo. State v. Hansen, 215 Ariz. 287, 289 ¶ 6 (2007). As ever,
our aim in statutory interpretation is “to effectuate the legislature’s intent.”
Stambaugh v. Killian, 242 Ariz. 508, 509 ¶ 7 (2017). Absent ambiguity or
absurdity, our inquiry begins and ends with the plain meaning of the
legislature’s chosen words, read within the “overall statutory context.”
Rosas v. Ariz. Dep’t of Econ. Sec., 249 Ariz. 26, 28 ¶ 13 (2020). Otherwise, we
turn to “secondary” factors, such as subject matter, history, purpose, and
consequences. Id.A. Standing
¶12 The Arizona Constitution omits a “case or controversy”
requirement akin to the one contained in its federal counterpart. City of
Surprise v. Ariz. Corp. Comm’n, 246 Ariz. 206, 209 ¶ 8 (2019). For this reason,
we are “not constitutionally constrained to decline jurisdiction based on
lack of standing.” Id. Still, Arizona courts do “exercise restraint to ensure
they ‘refrain from issuing advisory opinions, that cases be ripe for decision
2We do not disturb the court of appeals’ decision regarding the availability
of removal from office as a remedy for violating Arizona’s public
accountability laws, the sufficiency of Welch’s allegations supporting his
claims (which we presume in his favor anyway), the legal legitimacy of the
Board’s ratification of Call’s appointment, or the disclosure of the Board’s
executive session minutes.
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Opinion of the Court
and not moot, and that issues be fully developed between true
adversaries.’” Id. (quoting Bennett v. Brownlow, 211 Ariz. 193, 196 ¶ 16
(2005)). Standing may be conferred by a statute. See id. at 209–10 ¶ 9.
¶13 Both the open-meeting and the conflict-of-interest law contain
similarly worded enforcement provisions that confer standing. “Any
person affected by” either “an alleged violation” of the open-meeting law,
§ 38-431.07(A), or “a decision of a public agency,” § 38-506(B), has standing
to file suit. Though the scope of suitable claimants under each depends
upon a distinct event—for the open-meeting law, its violation; for the
conflict-of-interest law, a decision—we, like the court of appeals, see “no
principled reason” to adopt dissimilar meanings for their common
terminology. See Welch, 250 Ariz. at 192 ¶ 15; accord Qasimyar v. Maricopa
County, 250 Ariz. 580, 587 ¶ 19 (App. 2021) (“[A] word or phrase used in
related statutes should be construed to bear the same meaning
throughout.”). Accordingly, we construe the use of the phrase “[a]ny
person affected by” uniformly. 3
¶14 No doubt, “any person” includes Welch. See Person, Black’s
Law Dictionary (11th ed. 2019) (“A human being.”). The only question,
then, is whether the Call appointment’s impact on Welch’s status as a
Precinct Five resident and taxpayer permits us to conclude that he was
“affected by” the Board’s actions. We find that it does not.
¶15 Neither law defines “affected by,” and dictionaries circularly
define “affect” as meaning “to produce an effect on” or “to influence in
some way.” Affect, Black’s Law Dictionary (11th ed. 2019); accord Affect,
Merriam-Webster, https://www.merriam-webster.com/dictionary/affect
(last visited Aug. 31, 2021); see also State v. Pena, 235 Ariz. 277, 279 ¶ 6 (2014)
(“Absent statutory definitions, courts apply common meanings and may
look to dictionaries.” (internal citations omitted)). Such breadth plausibly
encompasses any articulable relationship. But such a broad definition
would invite absurd results. Indeed, to define “affected by” without any
concrete limitation would be to ignore its limiting role. The practical result
would be a grant of standing to “any person,” thereby reducing the
legislature’s presumably intentional inclusion of “affected by” to mere
3 We note that standing to enforce one law will not always mean standing
to enforce the other. Even with a uniform reading of “any person affected
by,” standing under each law depends upon its own triggering event. For
purposes of this opinion, however, we presume Call’s appointment is both
“an alleged violation” of the open-meeting law and a “decision of [the
Board]” under the conflict-of-interest law. See §§ 38-431.07(A), -506(B).
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surplusage. See Nicaise v. Sundaram, 245 Ariz. 566, 568 ¶ 11 (2019) (“A
cardinal principle of statutory interpretation is to give meaning, if possible,
to every word and provision so that no word or provision is rendered
superfluous.”). We therefore must employ other interpretive tools. Ariz.
Dep’t of Water Res. v. McClellan, 238 Ariz. 371, 375 ¶ 24 (2015).
¶16 The court of appeals attempted to limit this language by
reading each law’s enforcement provision as a grant of taxpayer standing.
The court found that Welch’s ultimate responsibility to replenish
misappropriated funds as a Precinct Five resident and taxpayer gave him
an “interest in receiving good value” for all Board tax expenditures,
including those spent on Call’s justice of the peace salary. Welch, 250 Ariz.
at 193 ¶¶ 16–17. The court then distinguished Welch’s situation from that
in Dail v. City of Phoenix, wherein the court found the claimant’s taxpayer
status inadequate to challenge a city contract to construct a water and sewer
system. 128 Ariz. 199, 201–02 (App. 1980). The relevant statute there gave
standing to “[a]ny person . . . whose rights . . . are affected by a . . .
contract.” A.R.S. § 12-1832. But the contract’s funding had come from city
water revenues, not taxes. Dail, 128 Ariz. at 202. Conversely, here, local tax
dollars fund justice of the peace salaries. Thus, the court of appeals found
that Welch’s interest in those expenditures includes the assurance of the
Board’s compliance with state public accountability laws, “even if the
purpose of the expenditure is proper.” Welch, 250 Ariz. at 193 ¶ 16. We
disagree.
¶17 We can appreciate the logical allure of the approach below.
The court of appeals has long considered a challenged action’s funding
source in assessing whether a claimant’s taxpayer status suffices for
standing. See, e.g., Tucson Cmty. Dev. & Design Ctr., Inc. v. City of Tucson, 131
Ariz. 454, 456 (App. 1981) (“Since there has been no expenditure of funds
raised by taxation and no pecuniary loss to the city, the mere status of
resident taxpayer is insufficient to confer standing.”). And, unlike the
contract awarded in Dail, “an expenditure of funds generated through
taxation” does pay for Call’s justice of the peace salary. See 128 Ariz. at 203.
Yet a test focused on finding a taxpayer-financed funding source proves
meaningless here. Indeed, it is difficult to imagine a government action
lacking at least some impact on taxpayer funds. For instance, in Dail, the
city employees tasked with negotiating the water project contract surely
drew public salaries. But those incidental costs were held not to suffice for
standing. See id. at 202 (requiring “a direct expenditure of funds that were
generated through taxation, an increased levy of tax, or a pecuniary loss
attributable to the challenged transaction of a municipality”). Nor are they
enough here.
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Opinion of the Court
¶18 We have long observed the “almost universal rule” that
taxpayers generally may enjoin the illegal expenditure of taxpayer dollars.
Ethington v. Wright, 66 Ariz. 382, 386 (1948); accord Rodgers v. Huckelberry,
247 Ariz. 426, 429–30 ¶¶ 11–14 (App. 2019) (“[A]n allegation of an illegal
expenditure has generally been held sufficient to establish standing.”).
However, we have never counted preexisting, incidental payroll costs as
such an expenditure. See Henderson v. McCormick, 70 Ariz. 19, 24–25 (1950)
(taxpayer status insufficient to challenge illegal sale of town-owned
vehicle); cf. Ethington, 66 Ariz. at 387 (taxpayer status enough to challenge
expenditure of illegally levied tax revenues). Nor, until now, has the court
of appeals. See Blanchard v. Show Low Plan. & Zoning Comm’n, 196 Ariz. 114,
117 ¶ 15 (App. 1999) (homeowners’ taxpayer status insufficient to challenge
rezoning of nearby parcel); Tucson Cmty. Dev. & Design Ctr., 131 Ariz. at 458(no taxpayer standing to challenge city use of block grant funds just because
“regular city employees have performed services in furtherance of the
project”); Dail, 128 Ariz. at 202–03 (no standing to challenge contract for
separately funded project); cf. Rodgers, 247 Ariz. at 429–30 ¶¶ 11–14
(taxpayer standing to challenge illegally awarded contract funded by tax
revenues arising from “equitable ownership of such funds and their
liability to replenish the public treasury for the deficiency which would be
caused by the misappropriation” (quoting Ethington, 66 Ariz. at 386)); Smith
v. Graham Cnty. Cmty. Coll. Dist., 123 Ariz. 431, 432–33 (App. 1979) (same);
Secrist v. Diedrich, 6 Ariz. App. 102, 104 (1967) (standing for illegal
expenditures). We hold to that view today.
¶19 The relationship between the Board’s decision to appoint Call
and his compensation is too remote to support taxpayer standing. A justice
of the peace salary, even one paid to a legally dubious nominee, is generally
only incidental to his or her appointment. Call’s appointment is not
responsible for his salary’s existence or for the tax levy that funds it. See
Tucson Cmty. Dev. & Design Ctr., 131 Ariz. at 458. Nothing in this record
suggests the Board created a new justice of the peace position, increased the
post’s compensation, or otherwise added to taxpayers’ liabilities to
accommodate their former colleague. The Board appointed Call to a
preexisting position, which was paid a preexisting salary, which was
funded by a preexisting tax levy.
¶20 Call’s salary also bears no relevance to Welch’s requested
relief. See Simon v. E. Ky. Welfare Rts. Org., 426 U.S. 26, 38 (1976) (“[T]he
relevant inquiry is whether . . . the plaintiff has shown an injury to himself
that is likely to be redressed by a favorable decision.”). A court order
restoring those funds to county coffers would not redress the injury of
Call’s allegedly unlawful appointment. Nor would removing Call from his
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Opinion of the Court
post in any way keep those already-appropriated funds from being used to
pay the seat’s eventual occupant. It was error, then, to credit Welch’s status
as a taxpayer to grant him standing here.
¶21 We further find taxpayer standing itself to be ill-suited to the
enforcement of Arizona’s public accountability laws. Public bodies
frequently make decisions that lack any budgetary impact. Filling an
existing judicial vacancy is but one example. Yet an absence of
expenditures hardly exempts these decisions from the same transparency
and impartiality requirements that govern new appropriations. See §§ 38-
431.01, -503. And a claim of someone “affected by” such a decision is no
less justiciable. See §§ 38-431.07(A), -506(B). Given its preoccupation with
expenditures and their funding sources, taxpayer standing fails to account
for these claimants and, thus, proves a poor lens through which to view
standing here.
¶22 The cases relied on by the court of appeals underscore this
incompatibility. In each instance, taxpayer standing acted as a check on
potential claims. See Rodgers, 247 Ariz. at 429–30 ¶¶ 12–13 (claimant must
show expenditure of tax-generated funds or pecuniary loss); Tucson Cmty.
Dev. & Design Ctr., 131 Ariz. at 456 (same); Dail, 128 Ariz. at 203 (same);
Smith, 123 Ariz. at 433 (same); Secrist, 6 Ariz. App. at 104 (same). Dail
illustrates an appropriate use of taxpayer standing. The court there used
taxpayer standing to reject the argument that a claimant’s taxpayer status
alone gave him automatic standing to challenge a city contract. Dail, 128
Ariz. at 201. To be sure, Arizona law grants claimants a broad “remedial”
right to seek declaratory relief regarding the “construction or validity” of
such contracts. A.R.S. §§ 12-1832, -1842. But “only if [the claimant] is
‘interested under’ the contract or [the claimant’s] ‘rights, status or legal
relations are affected by’ the contract.” Dail, 128 Ariz. at 201 (quoting
§ 12-1832). In cases involving the meaning or validity of statutes,
ordinances, or contracts, that interest or effect will often, though not always,
depend upon the claimant’s interest in a resulting tax levy or expenditure.
See id. at 201–02; cf. United Food & Com. Workers Loc. 99 v. Bennett, 934 F.
Supp. 2d 1167, 1188–89 (D. Ariz. 2013) (labor union had standing to seek
declaratory relief from law regulating labor and employment). Taxpayer
standing thus serves to ensure claimants in such cases have “some interest
beyond a general desire to enforce the law.” See Dail, 128 Ariz. at 202. Not
so of cases enforcing state public accountability laws. Applying the same
test would, by default, exclude a class of claimants for whom the statutory
text plainly provides relief. The court of appeals erred in adopting this test
below.
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¶23 As for an appropriate test, we do not write on a blank slate.
In City of Scottsdale v. McDowell Mountain Irrigation & Drainage District, we
construed a statute allowing “any person affected [by]” a county board
decision organizing an irrigation district to file suit challenging that
district’s validity. 107 Ariz. 117, 121 (1971). Given the statute’s remedial
purpose, we read its enforcement provision broadly—specifically, we
asked “whether the interest sought to be protected by the complainant is
arguably within the zone of interests to be protected or regulated by the
statute.” Id. (quoting Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397
U.S. 150, 153 (1970)). Notably, there, we refused to find standing based on
the individual claimant’s status as a county taxpayer, finding his fear of
future tax increases to fund the new district too remote and speculative. Id.at 121–22. Meanwhile, we found that the city’s statutory interest in keeping
a defined area of adjacent land clear for its own expansion fell within the
relevant zone of interests, given the district’s planned incursion into that
protected area. Id. at 122.
¶24 We conclude that the same “zone of interests” test applies
here. In addition to having almost identically worded enforcement
provisions, Arizona’s public accountability laws, like the City of Scottsdale
statute, are remedial in nature. See id. at 121; see also Scenic Ariz. v. City of
Phx. Bd. of Adjustment, 228 Ariz. 419, 422 ¶ 7 (App. 2011) (analyzing statute
permitting “person aggrieved” by board decision to sue for remedial relief
and noting that it is to be broadly construed). To that end, the open-meeting
law instructs courts to construe its provisions “in favor of open and public
meetings.” § 38-431.09(A). We therefore read each law’s enforcement
provision “broadly to effectuate the legislature’s purpose in enacting
them.” In re Estate of Winn, 214 Ariz. 149, 150 ¶ 5 (2007). We address
Welch’s standing to enforce each of them in turn.
1. The Open-Meeting Law
¶25 Welch’s interests as a Cochise County resident fall within the
zone of interests protected by the open-meeting law. See City of Scottsdale,
107 Ariz. at 121. The legislature enacted the law “to open the conduct of the
business of government to the scrutiny of the public and to ban decision-
making in secret.” Karol v. Bd. of Educ. Trs., 122 Ariz. 95, 97 (1979). It further
declared that government proceedings “exist to aid in the conduct of the
people’s business.” 1962 Ariz. Sess. Laws ch. 138, § 1 (2d Reg. Sess.). As
one such person and, more specifically, as one of the Board’s constituents,
Welch has an interest in ensuring that the Board’s “official deliberations
and proceedings be conducted openly.” Id.; accord § 38-431.09(A) (“It is the
public policy of this state that meetings of public bodies be conducted
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openly . . . .”); see also § 38-431.01(A) (“[A]ll persons so desiring shall be
permitted to attend and listen to the deliberations and proceedings.”). The
Board’s alleged violation of the open-meeting law in appointing Call
“affected” that interest. See § 38-431.07(A).
¶26 Our interpretation’s recognition of a large class of claimants
under the open-meeting law does not cause us to question its soundness.
We rejected use of taxpayer standing precisely for its underinclusiveness.
Supra ¶¶ 19–20. The law’s remedial purpose favors a more inclusive
reading. See § 38-431.09(A); Winn, 214 Ariz. at 150.
¶27 We are equally unmoved by Welch’s failure to personally
attend (or try to attend) the meeting that preceded Call’s appointment.
Welch’s interest in the Board’s adherence to its open-meeting obligations
does not require his presence. As the court of appeals observed, any
hindrance to public access—most notably, for the press and other
watchdogs, upon which constituents like Welch regularly rely to keep
abreast of government operations—affects those to whom such access is
guaranteed. See Welch, 250 Ariz. at 192 ¶ 14 & n.2. We agree with that
assessment.
¶28 The out-of-state decisions relied on by the Board are no more
availing. In Arnold v. City of Stanley, the court construed near-identical
language in the Idaho open-meeting law to deny standing to claimants
seeking to nullify an ordinance adopted at a meeting that had started half
an hour ahead of schedule. 345 P.3d 1008, 1009–10 (Idaho 2015); see Idaho
Code § 74-208(6) (“Any person affected by a violation of [the open-meeting
law] . . . .”). 4 But it did so for reasons inapplicable here. Despite the
meeting’s early start time, the notice had accurately stated the meeting’s
agenda, and the claimants there had already prearranged to have their
written testimony read into the record in lieu of offering live testimony.
Arnold, 345 P.3d at 1009–10. The court held that, although the ordinance
adopted at the meeting presumably affected the claimants’ property rights,
the open-meeting law’s “violation” had not secured its passage. Id. at 1012–
13. This issue does not preclude Welch’s standing here. Under the “zone
of interests” test, the impact of the Board’s alleged secrecy on Welch’s
interest in open-government deliberations is enough. See City of Scottsdale,
107 Ariz. at 121; see also Welch, 250 Ariz. at 192 ¶ 14 (refusing Arnold’s
4 At the time Arnold was decided, the same enforcement provision was
codified at Idaho Code § 67-2347(6). See 345 P.3d at 222.
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“narrow” construction given statutory directive to construe Arizona’s
open-meeting law broadly).
¶29 We also note the secrecy shrouding Call’s appointment. Cf.
Arnold, 345 P.3d at 1012 (“[T]he circumstances under which the meetings
were held in this case do not indicate secrecy.”). The apparent brevity of
the Board’s initial meeting, the unknown discussions during executive
session, the unexplained hour-long delay in reconvening, and the surprise
nomination of a sitting supervisor together raise the specter of secrecy in a
manner not analogous to simply starting a meeting half an hour earlier than
originally noticed. Cf. id.
¶30 The Board’s reliance on Severson v. City of Burlington fares no
better. See 215 A.3d 102 (Vt. 2019). For starters, the Vermont open-meeting
law’s use of “aggrieved by” entails a standard different from the “affected
by” one that governs the enforcement of Arizona’s open-meeting law. See
1 Vt. Stat. § 314(c); see also Aggrieved, Black’s Law Dictionary (11th ed. 2019)
(“(Of a person or entity) having legal rights that are adversely affected;
having been harmed by an infringement of legal rights.”); Aggrieved Party,
Black’s Law Dictionary (11th ed. 2019) (“A party entitled to a remedy; esp.,
a party whose personal, pecuniary, or property rights have been adversely
affected by another person’s actions or by a court’s decree or judgment.”).
Our own legislature’s use of the “aggrieved by” standard in other statutes
underscore its distinctiveness. See, e.g., A.R.S. § 48-2912 (“Any person
aggrieved by the action of the board of supervisors . . . .”). We do not decide
what those differences are today—only that the two are not synonymous.
¶31 Even if the standards were the same, Severson still poses no
impediment to standing here. The court there held that the claimant, a city
board member, lacked standing to enforce the state’s open-meeting law on
behalf of “unknown members of the public” who might have been locked
out of a board meeting. Severson, 215 A.3d at 108–09 ¶ 19. The notice setting
the meeting had warned that the doors would be locked half an hour after
the meeting’s start time, id. at 104 ¶ 3, and, aside from low attendance, the
board member could only speculate that locking the doors had either
denied entrance to or deterred the attendance of “at least one member of
the public,” id. at 109 ¶ 19. The court refused to indulge such an inference.
Id. Such speculation did not, however, render the board member’s
underlying interest illusory—indeed, the court held that he had a
“cognizable interest” in ensuring access for his constituents. Id. at 108 ¶ 18.
The court instead found no basis to infer any harm to that interest. Id. at
109 ¶ 19. Welch’s alleged injuries are hardly so speculative. He is not
interceding on behalf of other would-be claimants. Cf. id.; Arnold, 345 P.3d
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at 1013 (rejecting a similar attempt to sue on behalf of “all interested
citizens” who “may have hypothetically been affected by the meeting’s
early start time”). Instead, he seeks to vindicate his own statutorily
protected interest in the Board’s deliberative transparency. See City of
Scottsdale, 107 Ariz. at 121.
2. The Conflict-of-Interest Law
¶32 The same result follows for Welch’s conflict-of-interest claim.
Although the law’s enforcement depends upon a distinct trigger—namely,
“a decision of a public agency,” § 38-506(B)—this arguably narrower scope
does not exclude Welch. Like its open-meeting counterpart, the conflict-of-
interest law embodies a prophylactic policy of transparency and
accountability. See Maucher v. City of Eloy, 145 Ariz. 335, 337–38 (App. 1985)
(conflict-of-interest law adopted to protect public from official self-dealing);
see also Williams v. State ex rel. Morrison, 83 Ariz. 34, 36 (1957) (“[I]t is
imperative that [a public official] have no personal interest that might clash
or conflict with that of the state.”). An official with “a substantial interest”
in the business before his or her agency must publicly disclose that interest
and “shall refrain” from all associated decisions and deliberations.
§ 38-503(A)–(B). The legislature enacted the law “to remove or limit the
possibility of personal influence which might bear upon an official’s
decision.” Yetman v. Naumann, 16 Ariz. App. 314, 317 (1972); accord Croaff
v. Evans, 130 Ariz. 353, 360 (App. 1981) (“[S]ound public policy supports
and requires the disqualification of public officials when their private
interests create a possibility of conflict with their public duties.”).
¶33 The “zone of interests” created by the conflict-of-interest law
easily encompasses Welch’s claim. See City of Scottsdale, 107 Ariz. at 121.
As a Cochise County resident and Board constituent, he has an interest in
protecting against self-dealing by Board members. See Maucher, 145 Ariz.
at 337–38. Moreover, here, as a Precinct Five resident who apparently had
litigation pending in that justice court at the time, Welch had a particular
interest in ensuring the justice of the peace presiding over his claims was
not selected through self-dealing. Meanwhile, the circumstances preceding
Call’s appointment plausibly imply his involvement in his own
nomination. He took part in the Board’s decisions to forego other candidate
selection methods, to go into executive session, and to table the matter—all
without publicly disclosing his interest in the position. The Board then
resumed its session an hour after the appointed time and immediately
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DAVID WELCH V. COCHISE BOARD OF SUPERVISORS ET AL.
Opinion of the Court
nominated and appointed Call to the post. 5 Because the Board’s decision
affected Welch’s statutorily protected interest in preventing self-dealing, he
has standing to challenge it. See § 38-506(B).
B. Mootness
¶34 Welch’s standing to enforce the open-meeting law in turn
requires us to decide what effect, if any, the Board’s ratification of Call’s
appointment had on that claim. Under § 38-431.05(A), any legal action
transacted by a public body in violation of the open-meeting law is “null
and void” by default. A public body can negate that consequence, however,
by ratifying its violative conduct subject to certain statutory criteria. 6 See
§ 38-431.05(B)(1)–(4). The court of appeals interpreted this exception
narrowly. Specifically, it held that ratification “merely provides a way to
ensure the effectiveness of decisions by negating the consequence that a
decision at an improper meeting is null and void.” Welch, 250 Ariz. at
195 ¶ 25. We agree.
¶35 The plain language of the statutory ratification provision all
but mandates the court of appeals’ interpretation. The word “ratification”
means “[c]onfirmation and acceptance of a previous act, thereby making
the act valid from the moment it was done.” Ratification, Black’s Law
Dictionary (11th ed. 2019). Hence, ratification is concerned not with the
absolution of liability, but with the effectiveness of an initially invalid act.
Context and structure reinforce this reading. The provision begins with a
default rule that lists a single consequence for legal action taken in violation
of the open-meeting law: nullification. See § 38-431.05(A). The immediately
succeeding word “except” in turn signals an exception to that rule—and
only that rule. See id.; see also Exception, Black’s Law Dictionary (11th ed.
2019) (“A provision in a statute exempting certain persons or conduct from
the statute’s operation.”). The statute does not mention the remedies
5 The special meeting minutes further reveal that, after moving to appoint
Call, Supervisor English shared that Call had long expressed an interest in
the position and that she thought Call would make a good fit when she
learned of the possible vacancy.
6 Because we denied Welch’s cross-petition for review of the issue, we do
not address the court of appeals’ conclusion that Welch waived his
argument challenging the Board’s compliance with the open-meeting law’s
ratification procedure. See Welch, 250 Ariz. at 195-96 ¶¶ 28–29.
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DAVID WELCH V. COCHISE BOARD OF SUPERVISORS ET AL.
Opinion of the Court
associated with enforcement actions, much less make ratification an
exception to their availability. 7 See § 38-431.07(A).
¶36 The Board’s suggestion that § 38-431.05 expresses “no
limitation” on ratification’s effects ignores both the legislature’s chosen
(and unchosen) words and the statute’s grammatical construction. See
§ 1-213 (“Words and phrases shall be construed according to the common
and approved use of the language.”); accord Nicaise, 245 Ariz. at 568 ¶ 11.
The canon of construction expressio unius est exclusio alterius—that is, the
expression of one item implies the exclusion of others—counsels us to
construe the legislature’s exclusion of remedies as intentional. See City of
Surprise, 246 Ariz. at 211 ¶ 13. The legislature could have included a
provision barring post-ratification recovery as other states have done. See,
e.g., Cal. Gov. Code § 54960.1(e) (enforcement action “shall be dismissed
with prejudice” if open-meeting violation “cured or corrected by a
subsequent action”); 1 Vt. Stat. § 314(b)(1) (“The public body will not be
liable for attorney’s fees and litigation costs . . . if it cures in fact a violation
[of the open-meeting law] in accordance with [§ 314(b)(4)].”); Idaho Code
§ 74-208(7)(d) (ratification, or “cure,” “shall act as a bar to the imposition
of” civil penalties). But it did not. And it is not our role to add one. Collins
v. Stockwell, 137 Ariz. 416, 420 (1983) (“Courts will not read into a statute
something that is not within the manifest intent of the Legislature as
gathered from the statute itself.”).
¶37 Treating ratification as a complete cure to an open-meeting
violation would also ignore the legislature’s express intent that government
proceedings “be conducted openly.” 1962 Ariz. Sess. Laws ch. 138, § 1.
Public bodies would have little incentive to hold open meetings in the first
instance if they could rest assured that swift ratification upon a violation’s
detection would avoid all statutory sanctions. We accordingly decline the
Board’s invitation to interpret the statute more broadly.
7 Though his view is not dispositive, the Arizona Attorney General, whose
Open Meeting Law Enforcement Team handles open-meeting inquiries,
investigations, and enforcement proceedings, takes a similar position
regarding ratification’s effects on such claims. See Arizona Attorney
General, Arizona Agency Handbook § 7.12.1 (rev. 2018),
https://www.azag.gov/sites/default/files/docs/agency-handbook/2018
/agency_handbook_chapter_7.pdf (“Ratification merely validates the prior
action; it does not eliminate liability of the public body or others for
sanctions under the Open Meeting Law, such as civil penalties and
attorney’s fees.”).
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DAVID WELCH V. COCHISE BOARD OF SUPERVISORS ET AL.
Opinion of the Court
¶38 The cases cited by the Board likewise fail to alter our analysis.
Both decisions refer to § 38-431.05 before it contained a ratification
provision. See McLeod v. Chilton, 132 Ariz. 9, 14 (App. 1981); Cooper v. Ariz.
W. Coll. Dist. Gov. Bd., 125 Ariz. 463, 466–68 (App. 1980). At that time, the
statute simply provided that “[a]ll business transacted by any public body
during a meeting held in violation of the provisions of this article shall be
null and void.” 1978 Ariz. Sess. Laws ch. 86, § 5 (2d Reg. Sess.).
Nevertheless, in Cooper, the court of appeals held that nothing in the earlier
version of § 38-431.05 barred a public body from readopting an action
previously rendered null and void by an initial open-meeting violation. 125
Ariz. at 468. So long as the subsequent action passed muster under the
open-meeting law, “the same matter may be considered and adopted
again.” Id. at 469. This conclusion was echoed in McLeod the following year,
see 132 Ariz. at 14 (permitting readoption under circumstances “not
materially different from Cooper”), and codified by the legislature a year
later, see 1982 Ariz. Sess. Laws ch. 278, § 5 (adding ratification exception to
default rule). However, much like the ratification provision itself, both
decisions stop short of saying such curative efforts bar recovery for the
original violation.
¶39 We are similarly unpersuaded by the Board’s suggestion that
the relatively few remedies available to Welch as a private claimant means
ratification should serve as a complete cure to such claims. See
§ 38-431.07(A). The Board offers no authority for its apparent view that an
open-meeting claim’s continued validity post-ratification requires not just
an available remedy, but a sufficiently substantial one. We likewise see no
principled basis for such a rule. No matter the identity of the claimant, an
open-meeting violation remains actionable even after the underlying
decision’s ratification. See § 38-431.05(A). Once more, we refuse to read
into the statute a limitation that is not there.
¶40 We are nevertheless mindful of the lingering uncertainty as to
the remedies still available to Welch. Section 38-431.07(A)’s reference to “a
successful plaintiff” plainly encompasses Welch—that is, provided he
prevails on his open-meeting claim. See Plaintiff, Black’s Law Dictionary
(11th ed. 2019) (“The party who brings a civil suit in a court of law.”). At a
minimum, then, a successful Welch would be eligible to recover his legal
fees. See § 38-431.07(A). Whether he would be entitled to equitable relief
presents a closer question. The court of appeals left open the possibility for
both mandamus and injunctive relief if the trial court finds an open-
meeting violation. See Welch, 250 Ariz. at 196-97 ¶ 34. Indeed, the relevant
statutory provisions tend to support the availability of these remedies. See
§§ 38-431.04 (“Where the provisions of this article are not complied with, a
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DAVID WELCH V. COCHISE BOARD OF SUPERVISORS ET AL.
Opinion of the Court
court of competent jurisdiction may issue a writ of mandamus requiring
that a meeting be open to the public.”), -431.07(A) (permitting suits “for the
purpose of requiring compliance with, or the prevention of violations of”
the open-meeting law). We need not resolve that issue today. Given the
still-early stage of these proceedings, we can only guess whether Welch will
prevail on his open-meeting claim, much less whether the circumstances
will warrant equitable relief. We accordingly leave the question of
appropriate remedies to the trial court to resolve in the first instance.
III. CONCLUSION
¶41 Today’s opinion does not announce a new standard for
garden-variety standing questions. In adopting Arizona’s public
accountability laws, the legislature made clear its desire that their
provisions be broadly enforceable by all having an interest in the
transparency and accountability of those public agencies and officials that
act on their behalf. These interests exist independently of one’s active
involvement in or attendance of government meetings, and they are
affected even when there is nobody there to witness their violation. It is for
these reasons that we hold that §§ 38-431.07(A) and -506(B) grant standing
to all who fall within the broader “zone of interests” protected by Arizona’s
public accountability laws. We further hold that ratification under § 38-
431.05(B) does not act as a complete cure to an open-meeting violation;
instead, it merely negates the original action’s default nullification. We
therefore vacate paragraphs 11 through 17 of the court of appeals’ opinion,
affirm its reversal of the trial court, and remand to the trial court for further
proceedings.
16