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Arizona Supreme Court Agrees with Goldwater: Bureaucrats Must Respect Due Process

March 2, 2023

The Arizona Supreme Court issued a unanimous decision this morning siding with the Goldwater Institute and holding that state bureaucrats cannot simply decide the reach of their own authority.

The case—called Legacy Foundation v. Clean Elections Commission—involved the effort of a nonprofit called Legacy to challenge the jurisdiction of the agency charged with enforcing Arizona’s campaign finance laws. It began when the agency accused Legacy of violating those laws. Legacy asked for a hearing, held before an Administrative Law Judge, who ruled in Legacy’s favor. Yet Arizona law allows the heads of agencies to simply overturn such rulings—and the Clean Elections Commission did so, concluding that it had jurisdiction after all. And when Legacy then filed a new lawsuit, again arguing that the commission lacked authority, the court ruled that it was too late: once the commission made its final ruling, that ruling could not be overturned in a later (or “collateral”) proceeding.

That may sound complicated, but it had dangerous consequences for everyone in Arizona who’s regulated by some kind of administrative agency—which means, everyone. If bureaucrats can not only decide how far their powers extend, but also shield such decisions from reconsideration by judges, these agencies will become “judges in their own cases”—something that violates the most basic principles of due process. For courts to block “collateral” lawsuits challenging the power of bureaucracies—who can then decide for themselves how much power they have—would give unelected regulators extraordinarily broad power, far beyond the checks-and-balances system of our Constitution.

That was the argument we raised in our friend-of-the-court brief last fall: if the agency is acting as a prosecutor, it can’t be allowed to also act as a judge. “The proceedings below were not like a judicial hearing, in which the parties were free to brief and argue the jurisdictional question before a neutral decisionmaker,” we argued. “Instead, the jurisdictional finding took the form of a self-serving order by a party to the dispute; an order that overrode the neutral decision-maker…and merely asserted, in conclusory manner, that the Commission has jurisdiction.” Although judges usually won’t consider legal questions that are only raised in a friend-of-the-court brief, the court did so in today’s ruling, noting that “Goldwater Institute originally raised this issue, prompting this Court to address it at oral argument and then invite relevant briefing.…We do not ordinarily address arguments raised solely by amicus. We exercise our discretion to do so here because the issue is one of constitutional dimension and statewide importance.”

Citing earlier rulings in which agencies tried to act as both prosecutor and judge, the court declared that Legacy’s due process rights were indeed violated. It noted that “at the time the Commission initially ruled that it had subject matter jurisdiction, it was motivated to do so, at least partly, by two pending lawsuits,” and despite being advised by a lawyer, “the commissioners themselves made all enforcement decisions and then adjudicated the case.” These facts show that “the commissioners here served as both prosecutor and final decisionmaker, thereby depriving Legacy of its due process right to have subject matter jurisdiction adjudicated by a neutral decisionmaker.”

Today’s decision reiterates a crucial point that’s too often overlooked in today’s pervasive regulatory state: principles like checks and balances and separation of powers are essential to preserving individual freedom and ensuring a fair legal process for everyone. When bureaucrats—who are often not answerable to voters at all—have the power to make the rules, investigate infractions, and punish people for violating those rules, that authority can undermine our most important constitutional values and threaten the rights of every individual.

Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institute.



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