Karen Fann v. Hon. kemp/american Oversight ( 2022 )

IN THE
SUPREME COURT OF THE STATE OF ARIZONA
KAREN FANN, IN HER OFFICIAL CAPACITY AS PRESIDENT OF THE ARIZONA
SENATE; WARREN PETERSEN, IN HIS OFFICIAL CAPACITY AS CHAIRMAN OF
THE SENATE JUDICIARY COMMITTEE; THE ARIZONA SENATE, A HOUSE OF THE
ARIZONA LEGISLATURE,
Petitioners,
v.
THE HONORABLE MICHAEL KEMP, JUDGE OF THE SUPERIOR COURT OF THE
STATE OF ARIZONA, IN AND FOR THE COUNTY OF MARICOPA,
Respondent Judge,
AMERICAN OVERSIGHT,
Real Party in Interest,
No. CV-22-0018-PR
Filed August 31, 2022
Petition for Special Action from the Superior Court in Maricopa County
The Honorable Michael Kemp, Judge
No. CV2021-008265
REVERSED AND REMANDED WITH INSTRUCTIONS
Opinion of the Court of Appeals, Division One
252 Ariz. 508 (App. 2022)
VACATED
COUNSEL:
Kory Langhofer (argued), Thomas Basile, Statecraft PLLC, Phoenix,
Attorneys for Karen Fann, Warren Petersen, and Arizona Senate
Keith Beauchamp, Roopali H. Desai, D. Andrew Gaona (argued),
Coppersmith Brockelman PLC, Phoenix, Attorneys for American Oversight
David J. Bodney, Craig C. Hoffman, Matthew E. Kelley, Ballard Spahr LLP,
Phoenix, Attorneys for Amici Curiae Phoenix Newspapers, Inc. and Kathy
Tulumello
FANN V. HON. KEMP ET AL.
Opinion of the Court
JUSTICE LOPEZ authored the Opinion of the Court, in which CHIEF
JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER, JUSTICES BEENE,
MONTGOMERY, KING, and PELANDER (RETIRED) * joined.
JUSTICE LOPEZ, Opinion of the Court:
¶1 Today we consider the scope and application of legislative
privilege under the Arizona Constitution and the common law. See Ariz.
Const. art. 4, pt. 2, § 7. Legislative privilege—as set forth in Gravel v. United
States, 408 U.S. 606 (1972), and Arizona Independent Redistricting Commission
v. Fields, 206 Ariz. 130 (App. 2003) (the “Gravel/Fields framework”)—exists
to protect the integrity and functioning of the legislature. Thus, although
the privilege protects communications that are an integral part of the
deliberative and communicative processes relating to proposed legislation,
the privilege does not require pending legislation or affirmative evidence
of legislative impairment. Instead, the privilege also applies to legislative
communications concerning “other matters placed within the jurisdiction
of the legislature,” Fields, 206 Ariz. at 137 ¶ 18; accord Gravel, 408 U.S. at 625,
provided they are not administrative or political in nature. Finally, we
provide substantive and procedural guidance to aid the trial court in
evaluating the Arizona Senate’s privilege log and determining the
discoverability of assertedly privileged documents and communications.
BACKGROUND
¶2 Following the November 2020 election, Senate President
Karen Fann, Senate Judiciary Committee Chairman Warren Petersen, and
the Arizona Senate (collectively, the “Senate”) contracted with Cyber Ninjas
to conduct an audit of the nearly 2.1 million ballots cast in Maricopa County
(the “Audit”). The statement of work specified that the Audit would
“attempt to validate every area of the voting process to ensure the integrity
of the vote,” including “auditing the registration and votes cast, the vote
* Justice Clint Bolick has recused himself from this case. Pursuant to
article 6, section 3 of the Arizona Constitution, Justice John Pelander (Ret.)
of the Arizona Supreme Court was designated to sit in this matter.
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Opinion of the Court
counts and tallies, the electronic voting system, as well as auditing the
reported results.” At the conclusion of the Audit, Cyber Ninjas was to draft
a report detailing its findings, including any issues with voting tabulation
or software, and improperly transmitted result tallies. The report was also
to include “[r]ecommendations on how to prevent any detected weaknesses
from being a problem in future elections (if applicable).” Cyber Ninjas
delivered the report to the Senate in September 2021. The Senate
subsequently released the report to the public and conducted a public
hearing in the Senate chamber outlining the report’s findings and
conclusions.
¶3 American Oversight, a nonprofit organization that advocates
for government transparency, submitted requests to the Senate and Cyber
Ninjas to produce public records relating to the Audit. Upon the Senate’s
refusal to produce most of the requested records, American Oversight filed
a complaint under Arizona’s public records law, A.R.S. § 39-121, to compel
disclosure of the documents, including those in the possession or custody
of Cyber Ninjas and its subcontractors. The Senate moved to dismiss the
complaint, asserting among other things that legislative immunity barred
the suit. The trial court rejected the Senate’s immunity claim and ordered
it to immediately disclose all documents and communications concerning
the Audit’s planning and execution and any documents with a substantial
nexus to the Audit. The Senate sought special action relief in the court of
appeals, which accepted jurisdiction but denied relief, reasoning that the
legislature does not have a blanket exemption from disclosure under the
public records law. Fann v. Kemp ex rel. Cnty. of Maricopa (Fann I), No. 1 CA-
SA 21-0141, 2021 WL 3674157, at *1 ¶ 1, *3 ¶ 16 (Ariz. App. Aug. 19, 2021)
(mem. decision).
¶4 After the court of appeals held that the requested
communications were public records subject to disclosure requests, the
Senate subsequently disclosed about 22,000 records. However, the Senate
also submitted to the trial court a privilege log listing 422 withheld and 272
redacted communications, claiming these communications were covered
by legislative privilege, and withheld another 402 records based, in part, on
the same grounds. The Senate’s privilege log indicated that some of the
communications were withheld because those e-mails contained “internal
legislative discussions regarding [the] [A]udit” and legislative proposals
and some text messages referred to communications regarding its
legislative investigation, the Audit process, and legislative proposals.
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Opinion of the Court
American Oversight moved to compel the Senate to produce the withheld
records.
¶5 The trial court held in abeyance a decision on whether an in
camera inspection was necessary, declined to address the sufficiency of the
Senate’s privilege log, and rejected the Senate’s legislative privilege claim.
The court concluded that, even if legislative privilege applied, the Senate
effectively waived the privilege by releasing public statements about the
Audit, publishing Cyber Ninja’s comprehensive report, and conducting a
public hearing. The Senate sought special action relief in the court of
appeals, which held that the Senate did not meet its burden of showing that
all communications in the privilege log were protected by legislative
privilege, but that the trial court erred in finding a global waiver of the
privilege. Fann v. Kemp ex rel. Cnty. of Maricopa (Fann II), 252 Ariz. 508, 511
¶ 2 (App. 2022). The court of appeals ordered the Senate to disclose all
records listed in the privilege log that did not fall within the court’s
interpretation of the Gravel/Fields framework. When the Senate asserted
that the privilege shielded certain communications from discovery, the
court directed the Senate to submit to an in camera inspection by the trial
court to determine whether the records were privileged or must be
disclosed under the public records law. The Senate then sought this Court’s
review.
¶6 We granted review to consider the scope and application of
legislative privilege, a recurring issue of statewide importance. We have
jurisdiction under article 6, section 5(3) of the Arizona Constitution.
DISCUSSION
¶7 The court of appeals held that the Senate failed to meet its
burden of showing that the legislative privilege protected its Audit
communications from disclosure because (1) it did not demonstrate a
connection between the Audit and proposed or pending legislation, Fann II,
252 Ariz. at 517 ¶ 30; (2) the Audit was more administrative or political than
legislative in nature, id. at 516–17 ¶¶ 26–27; and (3) the Senate failed to
demonstrate impairment of the legislative process, id. at 518 ¶ 32. We
disagree and, after setting forth the general principles of privileges and the
contours of legislative privilege, we address, in turn, each of the court of
appeals’ conclusions and the substantive and procedural issues concerning
the Senate’s privilege log.
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Opinion of the Court
I.
A.
¶8 The party asserting a privilege has the burden of proving each
of its elements. Steiger v. Superior Court, 112 Ariz. 1, 3 (1975). The existence
of an evidentiary privilege is a question of law which we review de novo,
Fields, 206 Ariz. at 136 ¶ 14 (citing Twin City Fire Ins. v. Burke,
204 Ariz. 251, 254 ¶ 10 (2003)), and we also review de novo whether a
privilege applies, see State ex rel. Adel v. Adleman, 252 Ariz. 356, 360 ¶ 10
(2022).
¶9 It is a long-standing principle that “‘the public . . . has a right
to every man’s evidence,’ except for those persons protected by a
constitutional, common-law, or statutory privilege.” Branzburg v. Hayes,
408 U.S. 665, 688 (1972) (quoting United States v. Bryan, 339 U.S. 323, 331
(1950)); see also § 39-121 (Arizona’s public records law) 1; A.R.S. § 38-431.01
(Arizona’s open meeting law). Although the various privileges “are
designed to protect weighty and legitimate competing interests,” United
States v. Nixon, 418 U.S. 683, 709 (1974), we narrowly construe privileges
because they are “in derogation of the search for truth,” id. at 710; see also
R.S. v. Thompson ex rel. Cnty. of Maricopa, 251 Ariz. 111, 117 ¶ 16 (2021)
(recognizing the need for full disclosure of all facts to maintain the integrity
of the judiciary despite having no general constitutional right to discovery);
Indus. Comm’n v. Superior Court, 122 Ariz. 374, 375 (1979) (noting that
“statutes creating evidentiary privileges are [to be] strictly construed”).
These broad principles underlie our analysis of legislative privilege.
B.
1 The core purpose of the public records law is “to allow the public
access to official records and other government information so that the
public may monitor the performance of government officials and their
employees.” Phx. New Times, L.L.C. v. Arpaio, 217 Ariz. 533, 541 ¶ 27 (App.
2008) (quoting Phx. Newspapers, Inc. v. Keegan, 201 Ariz. 344, 351 ¶ 33 (App.
2001)). “To justify withholding public documents, the State’s interest in
non-disclosure must ‘outweigh the general policy of open access’” as stated
in the public records law. Phx. Newspapers, Inc., 201 Ariz. at 349 ¶ 19
(quoting Carlson v. Pima Cnty., 141 Ariz. 487, 491 (1984)).
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Opinion of the Court
¶10 Legislative privilege is a constitutional privilege that
emanates from legislative immunity. Fields, 206 Ariz. at 136 ¶ 15.
Legislative immunity, in turn, arises from the common law and is embodied
in the Speech or Debate Clause of the United States Constitution and the
notion of the separation of powers. Id.; see U.S. Const. art. 1, § 6, cl. 1
(“[Senators and Representatives] shall in all Cases, except Treason, Felony
and Breach of the Peace, be privileged from Arrest during their Attendance
at the Session of their respective Houses[;] . . . and for any Speech or Debate
in either House, they shall not be questioned in any other Place.”). The
federal Speech or Debate Clause allows legislators the freedom of speech,
debate, and deliberation without fear of intimidation or threats from the
executive branch and protects members of Congress from prosecutions
arising from the legislative process. Gravel, 408 U.S. at 616. When members
of Congress act within their “sphere of legitimate legislative activity,” the
Speech or Debate Clause is an absolute bar to criminal prosecution or civil
liability. Id. at 624 (quoting Tenney v. Brandhove, 341 U.S. 367, 376 (1951)).
¶11 The Supreme Court has recognized that common law
legislative immunity, akin to that embodied in the Speech or Debate Clause,
extends to state legislators while acting in a legislative capacity. Bogan v.
Scott-Harris, 523 U.S. 44, 49 (1998). This immunity, however, is limited
because it arises from the nature and purpose of the legislator’s core
activities:
Legislative acts are not all-encompassing. The heart of the
[Speech or Debate] Clause is speech or debate in either House.
Insofar as the Clause is construed to reach other matters, they
must be an integral part of the deliberative and communicative
processes by which Members participate in committee and
House proceedings with respect to the consideration and passage
or rejection of proposed legislation or with respect to other matters
which the Constitution places within the jurisdiction of either
House. As the Court of Appeals put it, the courts have
extended the privilege to matters beyond pure speech or
debate in either House, but “only when necessary to prevent
indirect impairment of such deliberations.”
Gravel, 408 U.S. at 625 (emphasis added) (citation omitted).
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Opinion of the Court
¶12 Our courts have recognized and adopted Gravel’s articulation
of the scope of legislative privilege. See, e.g., Fields, 206 Ariz. at 136 ¶ 15,
137 ¶ 18. Thus, legislative privilege extends beyond pure speech or debate
in the legislature provided the communication concerns “‘an integral part
of the deliberative and communicative processes’ relating to proposed
legislation or other matters placed within the jurisdiction of the legislature, and
‘when necessary to prevent indirect impairment of such deliberations.’” Id.at 137 ¶ 18 (internal citation omitted) (emphasis added) (quoting Gravel,
408 U.S. at 625). Consequently, legislative privilege also serves as a
testimonial and evidentiary privilege. Id. ¶ 17. A legislator engaged in
legitimate legislative activities cannot be compelled to testify about those
activities or the motives underlying legislative decisions. Id.; Steiger,
112 Ariz. at 3. This legislative privilege enables legislators to execute the
essential functions of the office without fear of prosecution and protects
both oral testimony and document production. Fields, 206 Ariz. at 137 ¶ 17,
140–41 ¶ 32. If legislative immunity or privilege applies to either testimony
or documents, it is absolute. See Mesnard v. Campagnolo ex rel. Cnty. of
Maricopa, 251 Ariz. 244, 250 ¶ 21 (2021); see also Restatement (Second) of
Torts § 590 (Am. L. Inst. 1977) (noting that legislators are “absolutely
privileged to publish defamatory matter concerning another in the
performance of [their] legislative functions”).
¶13 But not every legislator’s act “‘in any way related to the
legislative process’ is afforded absolute immunity.” Mesnard, 251 Ariz.
at 249 ¶ 14 (quoting Steiger, 112 Ariz. at 4). Legislative privilege “is not
intended to protect legislators’ individual interests, ‘but to support the
rights of the people, by enabling their representatives to execute the
functions of their office without fear of prosecutions, civil or criminal.’”
Fields, 206 Ariz. at 137 ¶ 17 (quoting Coffin v. Coffin, 4 Mass. 1, 27 (1808)).
Like legislative immunity, legislative privilege only protects the disclosure
of documents concerning purely legislative acts and does not cover
communications solely about political or administrative acts. See Mesnard,
251 Ariz. at 249 ¶ 16; Fields, 206 Ariz. at 140–41 ¶ 32.
¶14 Legislative functions entitled to privilege include preparing
reports, offering resolutions, voting, and other activities generally
undertaken by a legislator during a legislative session related to business
before the legislature. Mesnard, 251 Ariz. at 249 ¶ 15. Legislative immunity
applies to legislators, legislative aides, and legislative contractors’
“legislative activities.” Id. at 248 ¶ 12. This immunity extends to legislative
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Opinion of the Court
contractors such as Cyber Ninjas. See id. (“When applicable, the doctrine
prevents legislators, their aides, and their contractors from being criminally
prosecuted or held civilly liable for their legislative activities.” (Emphasis
added.)); Fields, 206 Ariz. at 140 ¶ 30. Thus, legislative contractors’
communications similarly can be subject to the legislative privilege. See
Fields, 206 Ariz. at 134 ¶ 1. The case before us today involves only the
Senate’s internal communications, not communications with Cyber Ninjas.
¶15 Most states, including Arizona, have preserved common law
legislative immunity in their respective constitutions. Id. at 137 ¶ 16;
Sanchez v. Coxon, 175 Ariz. 93, 95 (1993) (recognizing the Arizona
Constitution as a source of immunity for state legislators). The Arizona
Constitution provides that “[n]o member of the legislature shall be liable in
any civil or criminal prosecution for words spoken in debate.” Ariz. Const.
art. 4, pt. 2, § 7. Although the language of Arizona’s Speech or Debate
Clause differs slightly from its federal counterpart, our courts have held
that cases construing the federal clause and the common law are persuasive
in interpreting the scope of the immunity and privilege as embodied in the
Arizona Constitution. See, e.g., Fields, 206 Ariz. at 137 ¶ 16 n.4.
II.
¶16 We first address the court of appeals’ conclusion that the
Audit is not subject to legislative privilege because its protections pertain
only to proposed or pending legislation. See Fann II, 252 Ariz. at 517 ¶ 30.
A.
¶17 In holding that legislative privilege applies only to
communications concerning proposed or pending legislation, the court
overlooked a critical component of the Gravel/Fields framework—that the
privilege applies to “other matters placed within the jurisdiction of the
legislature.” Fields, 206 Ariz. at 137 ¶ 18 (citing Gravel, 408 U.S. at 625). The
Gravel/Fields framework makes clear that legislative privilege implicates
two types of matters within the legislature’s jurisdiction: (1) matters
relating to proposed legislation and (2) other matters placed within the
legislature’s jurisdiction. Gravel, 408 U.S. at 625; Fields, 206 Ariz. at 137 ¶ 18;
accord Mesnard, 251 Ariz. at 249 ¶ 15; see also Miller v. Transamerican Press,
Inc., 709 F.2d 524, 529 (9th Cir. 1983) (proposing that activity other than pure
speech or debate must (1) be an integral part of the deliberative and
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Opinion of the Court
communicative processes by which members participate in the legislative
proceedings and (2) address proposed legislation or some other subject
within the legislature’s constitutional jurisdiction). Because the
Gravel/Fields framework is posed in the disjunctive, it obviates a
requirement for proposed or pending legislation if the legislative action
involves other matters within the legislature’s jurisdiction.
¶18 To be sure, a legislator’s act does not warrant privilege merely
because it is undertaken in an official capacity. See Gravel, 408 U.S. at 625.
Privileged legislative acts bear the hallmarks of discretionary,
policymaking choices that might have prospective implications, such as the
creation of legislation, traditionally in areas where legislators have the
power to act. Fields, 206 Ariz. at 138 ¶ 21 (citing Bogan, 523 U.S. at 55–56);
see also Mesnard, 251 Ariz. at 249 ¶¶ 15–16. Fields is illustrative. There, the
court of appeals deemed redistricting a privileged legislative activity
because it entailed the exercise of discretionary, policymaking decisions
within the constitutional framework to balance the goals of redistricting
legislative districts and to devise a final plan. Fields, 206 Ariz. at 138 ¶ 22.
Fields further clarified that “to the extent the legislative privilege protects
against inquiry about a legislative act or communications about that act, the
privilege also shields from disclosure documentation reflecting those acts
or communications.” Id. at 141 ¶ 32; see also Miller, 709 F.2d at 528 (“When
members are acting within the ‘legitimate legislative sphere,’ the privilege
is an ‘absolute bar to interference.’ Any questioning about legislative
acts . . . would ‘interfere’ by having a chilling effect on Congressional
freedom of speech.” (internal citation omitted) (quoting Eastland v. U.S.
Servicemen’s Fund, 421 U.S. 491, 503 (1975))).
¶19 Legislative investigation is often sufficient to invoke
legislative privilege because such inquiries frequently precede formal
legislative action. See Eastland, 421 U.S. at 504 (“[T]he power to investigate
is inherent in the power to make laws because ‘(a) legislative body cannot
legislate wisely or effectively in the absence of information respecting the
conditions which the legislation is intended to affect or change.’” (quoting
McGrain v. Daugherty, 273 U.S. 135, 175 (1927))). Indeed, curtailment of the
privilege’s scope to communications concerning proposed or pending
legislation would discourage wise or effective evaluation of the very
necessity of legislation. See id. at 509 (“[T]he legitimacy of a congressional
inquiry [is not] defined by what it produces. The very nature of the
investigative function—like any research—is that it takes the searchers up
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Opinion of the Court
some ‘blind alleys’ and into nonproductive enterprises”; and therefore,
“[t]o be a valid legislative inquiry[,] there need be no predictable end
result.”).
¶20 The fact that a legislator conducts an investigation, however,
does not categorically render the matter within the scope of the “legislative
process.” Steiger, 112 Ariz. at 3. If the investigative topic concerns “a subject
on which ‘legislation could be had,’” Eastland, 421 U.S. at 506 (quoting
McGrain, 273 U.S. at 177), it “is related to and in furtherance of a legitimate
[legislative act],” id. at 505. If not, then the converse is true. See Restatement
§ 590 cmt. a (“[The privilege] extends to the work of legislative committees
or sub-committees that are engaged in an investigation or other work
authorized by the legislative body, whether the work is performed while
that body is in session or during a recess.”). For example, in Steiger, this
Court held that a legislative investigation was not privileged because it
concerned a pending civil action against a sitting congressman and his staff,
which was not related to any legitimate legislative activities. See 112 Ariz.
at 3–4. Thus, the legislative privilege did not shield the legislator’s activities
due to the personal, reputational, and political nature of the investigation
that was devoid of any ties to the legislative process. Our focus on the
political nature of the investigation in Steiger is inapplicable here because,
unlike the investigation in Steiger, the Audit involves the legislative process.
B.
¶21 We hold that the Senate engaged in a privileged legislative act
when it exercised its statutory and constitutional authority to investigate
the 2020 general election. The legislature possesses the authority to enact
substantive election laws. See State v. Reed, 248 Ariz. 72, 76 ¶ 10 (2020); see
also Ariz. Const. art. 7, § 1 (“All elections by the people shall be by ballot, or
by such other method as may be prescribed by law . . . .”). And although
the Secretary of State administers elections in Arizona, the Supreme Court
and this Court have recognized the state’s interest in preserving the
integrity of elections and the authority to enact laws to ensure that elections
are fair and honest. See Eu v. S.F. Cnty. Democratic Cent. Comm.,
489 U.S. 214, 231 (1989); Arizonans for Second Chances, Rehab., & Pub. Safety
v. Hobbs, 249 Ariz. 396, 408–09 ¶ 41 (2020). The investigation into the
accuracy of the 2020 election in Maricopa County was a function within the
“legitimate legislative sphere” as any “other matter[] placed within the
jurisdiction of the legislature.” Fields, 206 Ariz. at 136 ¶ 15, 137 ¶ 18; accord
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Gravel, 408 U.S. at 624–25; see also Trump v. Mazars USA, LLP,
140 S. Ct. 2019, 2026, 2031–32 (2020). Our constitution grants the legislature
the authority to enact laws regarding the conduct of elections, see Ariz.
Const. art. 7, § 12, and to decide whether and to what extent the Maricopa
County Board of Supervisors can conduct elections, see id. art. 12, § 4.
¶22 Our conclusion that the Senate’s Audit was a privileged
legislative act is bolstered by the Audit’s statement of work, which
established that Cyber Ninjas would recommend remedial measures to
address any identified flaws in Arizona’s elections system following the
2020 election. Of course, such recommendations could serve as a source for
proposing legislative solutions for any identified issues. It is of no moment
whether the Senate proposed an election reform bill as a result of the Audit.
The legislative authority to investigate in contemplation of potential
legislation concerning voter registration, election procedures, and election
integrity, itself, is protected by legislative privilege. See Eastland, 421 U.S.
at 506.
¶23 The Audit is a legislative activity within the legislature’s
authority, and communications concerning this activity are covered by
legislative privilege. Consequently, the Senate’s internal communications
concerning the authorization, planning, and findings of the Audit
investigation are privileged. See Mesnard, 251 Ariz. at 250 ¶ 21 (holding that
a resulting “investigative report” was “an integral part of the deliberative
and communicative processes” concerning a matter within the legislature’s
jurisdiction). American Oversight is not entitled to production of these
communications that are purely legislative in nature.
III.
¶24 We next address the court of appeals’ conclusion that the
Senate’s communications were not covered by legislative privilege because
the Audit was more administrative or political than legislative in nature.
See Fann II, 252 Ariz. at 516–17 ¶¶ 26–27.
¶25 Administrative and political acts are beyond the scope of
legitimate “legislative acts” and, thus, are not covered by legislative
privilege. Supra ¶ 13. The hallmarks of an administrative act excluded
from legislative privilege are well-established. In Gravel, the Supreme
Court concluded that a legislator’s communications with executive officials
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and administrative agencies concerning administration of a federal statute
is a non-privileged administrative activity. 408 U.S. at 625. In Mesnard, we
recently opined that exhorting an executive agency to administer a law in a
particular manner would constitute a non-privileged administrative
matter. 251 Ariz. at 249 ¶ 16. Courts have also determined that decisions
related to the legislative process that do not “themselves bear the ‘hallmarks
of traditional legislation by reflecting a discretionary, policymaking
decision,’” State ex rel. Montgomery v. Mathis, 231 Ariz. 103, 123 ¶ 79 (App.
2012) (quoting Fields, 206 Ariz. at 138 ¶ 21)—such as whether to hire a
consultant, how much to pay it, and whom to hire—are similarly classified
as non-privileged administrative tasks, id. ¶ 80 (concluding that a decision
was not legislative because there was no policy choice to be made, the action
did not have the force of law, nor was there a prospective application). See
also Chateaubriand v. Gaspard, 97 F.3d 1218, 1220–21 (9th Cir. 1996) (noting
that courts generally consider employment and personnel decisions of
legislators to be administrative acts). Finally, if the legislature enters into a
contract—a legislative, policy-driven act—a legislator that complies with
the terms of the agreement is acting outside of the legislative realm and
instead acts in an administrative or executive function. See Cinevision Corp.
v. City of Burbank, 745 F.2d 560, 580 (9th Cir. 1984).
¶26 Political acts are also unprotected by legislative immunity or
privilege. Mesnard, 251 Ariz. at 249 ¶ 16. Political acts include making
speeches outside of the legislature, “performing tasks for constituents,
sending newsletters, issuing news releases, and the like.” Id.; see United
States v. Brewster, 408 U.S. 501, 512 (1972) (discussing covered legislative
activities and uncovered political activities); Restatement § 590 cmt. a (“The
privilege does not protect a legislator who in private or public discussion
outside of his legislative function explains his reasons for voting on past,
pending or proposed legislation or who otherwise discusses the legislation,
or who engages in other activities” that are “incidentally related to
legislative affairs but not a part of the legislative process itself.”).
¶27 Although we conclude that many of the Senate’s Audit-
related documents likely implicate legislative privilege, we reiterate several
categorical exemptions that may compel disclosure of some of the Senate’s
withheld documents. Notably, the Senate concedes that it is not claiming
privilege as to administrative or political communications. Thus, records
of communications concerning the administration of the Audit—including
payment, employment of consultants, and the like—are non-privileged
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Opinion of the Court
administrative functions. See Mesnard, 251 Ariz. at 249 ¶ 16; Fields, 206 Ariz.
at 137 ¶ 18; Gravel, 408 U.S. at 625. Communications about the public
reaction to the Audit and what information should be released to the public
are political acts and are also not protected by legislative privilege, Mesnard,
251 Ariz. at 249 ¶ 16; Fields, 206 Ariz. at 137 ¶ 18, but, if made between
Senate counsel and a senator or senate staff, could be protected by attorney-
client privilege, see A.R.S. § 12-2234; Samaritan Found. v. Goodfarb, 176 Ariz.
497, 501–02 (1993). Additionally, certain non-substantive communications,
such as e-mails between legislators arranging lunch to discuss the Audit,
are not privileged.
¶28 A final point. The court of appeals reasoned that it was
necessary to consider whether possible legislation was the “prime” purpose
of the Audit. Fann II, 252 Ariz. at 516 ¶ 26. We disagree. Despite the unique
politicization of the Audit, any purported political motive for the
legislature’s action in pursuing the Audit is irrelevant. See Mesnard,
251 Ariz. at 249–50 ¶ 18; United States v. Johnson, 383 U.S. 169, 180 (1966)
(noting that inquiry into a motive for legislative function is “precisely what
the Speech or Debate Clause generally forecloses from executive and
judicial inquiry”); Tenney, 341 U.S. at 377 (“The claim of an unworthy
purpose does not destroy the privilege. Legislators are immune from
deterrents to the uninhibited discharge of their legislative duty . . . .”). We
consider actions, not motives. Our analysis rests on the legislative nature
of, rather than the motive for, the Senate’s Audit.
IV.
¶29 We next consider whether a proponent of legislative privilege
must prove indirect impairment of the legislative process. The court of
appeals held that the Senate failed to meet its burden of establishing
legislative privilege because it made no attempt to demonstrate that
confidential treatment of the communications was necessary to prevent
indirect impairment of legislative deliberations. Fann II, 252 Ariz. at
518 ¶ 32. We disagree.
¶30 The court misconstrued Gravel in requiring the Senate to
prove an indirect impairment of legislative deliberations. In Gravel,
although the Court broadened the scope of legislative privilege beyond
pure speech or debate to cover matters that are “an integral part of the
deliberative and communicative processes . . . with respect to other matters
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Opinion of the Court
which the Constitution places within the jurisdiction” of the legislature,
408 U.S. at 625, the purpose remained the same: to prevent the indirect
impairment of legislative deliberations by intrusions into legislative acts.
See id. Gravel did not require parties asserting legislative privilege to prove
such impairment. Rather, Gravel merely explained that the prevention of
indirect impairment is a feature of the legislative privilege by ensuring that
legislators could engage in necessary legislative deliberations and decisions
without fear of undue public scrutiny or interference.
¶31 Our opinion in Mesnard accords with our conclusion that
Gravel did not require an affirmative showing of indirect impairment of
legislative deliberations. 251 Ariz. at 249 ¶ 15. Thus, evidence that
Senators’ communications concerned the Audit’s authorization, planning,
and findings—an investigation into a matter within the legislature’s
authority that could result in legislation—is sufficient to establish
legislative privilege, even absent a showing of actual impairment.
Legislative impairment is merely a guidepost to determine whether an act
is legislative in nature; proving “indirect impairment” is not an additional
requirement or finding under Gravel/Fields.
V.
¶32 Given the confusion regarding privilege logs apparent in the
courts below, see supra ¶¶ 4–5, we now address the substantive and
procedural issues concerning the Senate’s privilege log and the
discoverability of Audit-related documents and communications.
¶33 As the party seeking to prevent disclosure of documents, the
Senate “has the burden of overcoming ‘the legal presumption favoring
disclosure.’” Scottsdale Unified Sch. Dist. No. 48 v. KPNX Broad. Co.,
191 Ariz. 297, 300 ¶ 9 (1998) (quoting Cox Ariz. Publ’ns, Inc. v. Collins,
175 Ariz. 11, 14 (1993)). Arizona statutes outline the maintenance of public
records and the process for withholding privileged or confidential
documents. See A.R.S. § 39-121.01(D)(2). When documents are withheld,
§ 39-121.01(D)(2) requires “an index of records or categories of records that
have been withheld and the reasons the records or categories of records
have been withheld.” This index should not include any information that
is expressly privileged or confidential pursuant to statute or court order. Id.
Although § 39-121.01 does not call this “index” a privilege log, the term
commonly used in the courts, we conclude that the statutory language is
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FANN V. HON. KEMP ET AL.
Opinion of the Court
instructive in delineating the requirements of a privilege log in this context.
Because the privilege log here is not being utilized in discovery, Arizona
Rule of Civil Procedure 26(b) is not controlling, but we find it instructive.
Rule 26(b)(6)(A)(i) provides that when a party claims a privilege or work-
product protection and withholds information or documents in litigation,
the party must identify in a privilege log the information or document(s)
being withheld and describe the nature of the item “in a manner that—
without revealing information that is itself privileged or protected—will
enable other parties to assess the claim.”
¶34 Although both § 39-121.01 and Rule 26(b) provide guidance
for what a privilege log must include, a privilege log’s descriptions must
entail more than generalities. For example, the Senate described several
communications broadly as relating to the planning, conduct, or results of
the Audit, stating generally that withheld e-mails contained “internal
legislative discussions concerning . . . the [A]udit.” Because these
descriptions are vague, the communications could include administrative
and political matters. As discussed, supra ¶ 13, only communications about
acts that are legislative in nature are protected by legislative privilege;
communications involving administrative or political acts must be
disclosed. Greater detail is required to mitigate the risk that the vague
descriptions in privilege logs could defeat transparency in government
activities as required by law. Consequently, privilege log entries must
include specific assertions explaining why the document is purportedly
privileged to the greatest extent possible without revealing its content or
otherwise violating the privilege. The entries should adhere to
Rule 26(b)(6)(A)(i) and sufficiently describe the communications to allow
assessment of the privilege claim without revealing privileged or protected
information.
¶35 We remand this case to the trial court to instruct the Senate to
produce any communications that fall within the administrative, political,
or other categories unprotected by legislative privilege.2 On remand, if the
Senate’s privilege log descriptions adequately delineate legislative acts, the
court must defer to these descriptions without conducting an in camera
2 In its supplemental brief, the Senate argued for the first time that it
is entitled to a change of judge on remand pursuant to Arizona Rule of Civil
Procedure 42.1(e). We did not accept review on this issue and decline to
address it here.
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FANN V. HON. KEMP ET AL.
Opinion of the Court
review. If any privilege log entry lacks sufficient description to support the
Senate’s claim of legislative privilege, the court should afford the Senate a
reasonable opportunity to revise its privilege log consistent with this
opinion’s guidance.
¶36 If the Senate refuses or fails to provide sufficient specificity in
its privilege log descriptions, it has not made a prima facie showing of the
privilege, thereby triggering in camera review to determine if legislative
privilege applies. If the Senate successfully makes a prima facie showing
of privilege, American Oversight, as the party contesting the privilege, can
challenge the privilege claim. See Adleman, 252 Ariz. at 361 ¶ 15. To succeed
on its challenge, American Oversight would have to establish, on a good
faith basis, that an in camera review of the communications would reveal
that legislative privilege does not apply. Id.; see also United States v. Zolin,
491 U.S. 554, 572 (1989) (recognizing that there must be a factual basis
adequate to support a good faith belief by a reasonable person that in
camera review of materials may reveal evidence that the privilege does not
apply).
CONCLUSION
¶37 The 2020 election remains a central focus of the political
realm, a matter outside this Court’s constitutional prerogative. Our
decision today follows longstanding constitutional and common law
precedent to preserve fundamental principles of the separation of powers
and to guard our legislators’ ability to discharge their constitutional duties
without undue interference or impairment of their deliberative and
communicative work as a legislative body. Arizona legislators routinely
stand for election and, thus, are accountable to the state’s electorate who
serve as the ultimate arbiters of the wisdom of any legislative action, rather
than the courts.
¶38 For the foregoing reasons, we reverse the trial court’s order
that the Senate disclose all communications concerning the Audit to
American Oversight. The Gravel/Fields framework requires that
communications concerning legislative activities qualify for legislative
privilege; communications need not relate to proposed or pending
legislation nor require an affirmative showing of indirect impairment of
legislative deliberations. But the Senate must disclose communications
concerning administrative, political, or other non-legislative matters. We
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FANN V. HON. KEMP ET AL.
Opinion of the Court
vacate the court of appeals’ opinion and remand to the trial court to resolve
the Senate’s legislative privilege claims consistent with the procedures and
standards described in this opinion.
17