In court, getting the substantive law right is only half the battle. Procedural rules affect the fairness, efficiency, and often even the final outcome of cases. That’s why the Goldwater Institute welcomes the Arizona Supreme Court’s recent amendment of a rule that affects public records cases and certain other “special” types of lawsuits authorized by the Legislature. The amendment clarifies the scope of such lawsuits, resolving recent confusion among lawyers and judges as to how the rule applied.
The rule change is a win for government transparency, the separation of powers, and the public’s ability to resolve legal disputes in court. It protects Arizonans’ right to bring cases that the Legislature has authorized, and it makes it harder for the government to use procedural rules as roadblocks to limit the kinds of questions and cases the courts can hear.
In 2025, Arizona’s revamped Rules of Procedure for Special Actions went into effect, after input from the Goldwater Institute and more than a year of work by a task force appointed by the Supreme Court to modernize the rules and clean up clunky, archaic, and unclear language. Though a positive step, a few details from the prior set of rules were inadvertently lost along the way. That included some nuance as to how Arizona courts treat public records cases and other legislatively created legal actions.
Arizona law labels some types of cases as “special actions,” and they’re unique for a few reasons. Special actions are often used when speedy resolution is required, and many special actions take the place of some older types of lawsuits. The Arizona Legislature can also create new special actions through statute. Lawyers call these “statutory special actions,” and they can arise in a broad range of legal contexts, including public records cases.
Historically, special actions and their predecessors were limited to specific types of legal questions, such as whether a public official didn’t do something they were legally required to do, or did something they weren’t authorized to do. Those kinds of cases are still important. But when the Legislature creates a new “special action,” the Legislature also gets to say what sorts of issues can be raised in those cases.
The 2025 rules were not entirely clear on that point. Some of the language was interpreted by a few lawyers and judges to impose new restrictions on public records litigants that the Legislature had not authorized. That caused confusion as at least one court found that the procedural rules somehow limited the substantive questions that could be raised in statutory special actions, including public records suits that already had longstanding caselaw stating the opposite.
So, the Goldwater Institute asked the Court to clarify the rule, restore the prior understanding of statutory special actions, and reiterate that while the judiciary gets to set procedures, under the Arizona Constitution’s separation of powers, it’s the Legislature that decides substantive law.
The State Bar of Arizona tried to stop this rule change, submitting a comment opposing the proposal. The Bar’s position was essentially that the public records statute, among others, incorporated anything that could be gleaned from the rules—including not only the substantive questions that could be raised, but also the standard of review that courts would apply. In short, the Bar sought to limit—by rule, not statute—the kinds of questions and cases that could come before the courts and the ability of courts to meaningfully scrutinize the decisions of government officials in public records and other cases, tipping the scales in favor of the government. That would have turned the separation of powers on its head and made public records cases significantly more challenging.
Fortunately, the Arizona Supreme Court agreed with the Goldwater Institute and rejected the Bar’s arguments by granting the petition. This comes on the heels of a related Goldwater victory in the Supreme Court that will force the City of Phoenix to disclose union negotiation records that it has hid from the public for more than three and a half years. The Court is currently reviewing another case that overlaps both issues.
We hope that the pro-transparency trend continues. After all, not only does the public deserve clear and fair court rules that respect constitutional limitations, but citizens also have the right to know what their government is up to. Goldwater remains committed to advancing those causes.
You can read our petition, the Bar’s comment, and our reply here, and the Court’s order amending the rule is available here.
Click here to learn more about how to use public records laws to find out what your government is up to.
Parker Jackson is a Staff Attorney at the Goldwater Institute.
