Jewish Community v. State

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

JEWISH COMMUNITY RELATIONS COUNCIL OF GREATER
PHOENIX, et al., Plaintiffs/Appellants,

v.

STATE OF ARIZONA, et al., Defendants/Appellees.

No. 1 CA-CV 22-0343
FILED 2-2-2023

Appeal from the Superior Court in Maricopa County
No. CV2022-001875
The Honorable Joan M. Sinclair, Judge

AFFIRMED

COUNSEL

DLA Piper US LLP, Phoenix
By Craig M. Waugh, Laura E. Sixkiller
Co-counsel for Plaintiffs/Appellants

American Civil Liberties Union of Arizona, Phoenix
By Jared G. Keenan, Benjamin L. Rundall
Co-counsel for Plaintiffs/Appellants

DLA Piper US LLP, Baltimore, MD
By Adam J. Pie, Michael Bakhama
Co-counsel for Plaintiffs/Appellants

Arizona Attorney General’s Office, Phoenix
By Drew Curtis Ensign, Jeffrey L. Sparks, Robert J. Makar, Ginger Jarvis
Counsel for Defendants/Appellees

MEMORANDUM DECISION

Judge Randall M. Howe delivered the decision of the court, in which
Presiding Judge David D. Weinzweig and Judge D. Steven Williams joined.

H O W E, Judge:

¶1 Jewish Community Relations Council of Greater Phoenix,
Paul Rockower, and Alan Zeichick (“Council”), appeal the trial court’s
order granting a motion to dismiss for the State of Arizona and Arizona
Department of Corrections, Rehabilitation & Reentry (“State”). For the
following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 The Council is an Arizona nonprofit corporation that
purports to advocate for Jewish residents and taxpayers in Arizona. Paul
Rockower, the Council’s executive director, and Alan Zeichick, a Council
member, are taxpaying Arizona residents.

¶3 The Arizona Constitution provided that the death penalty be
administered by lethal gas until November 1992, when Arizonans adopted
Proposition 103 to establish lethal injection as the method of execution. See
Ariz. Const. art. 22, § 22; A.R.S. § 13–757. Since then, only one Arizona
convict was executed by lethal gas.

¶4 Recently, the State moved for a warrant to execute two death-
row convicts. State officials purchased enough cyanide and other chemicals
to execute them with lethal gas. The State also inspected, refurbished, and
recertified a gas chamber. As a result, the Council sued the State seeking (1)
a declaratory judgment that execution by cyanide gas was a cruel and
unusual punishment under the Arizona Constitution, and (2) a permanent
injunction to enjoin the State from purchasing and using cyanide gas for
capital punishment. During World War II, Nazi Germany used hydrogen
cyanide gas to exterminate Jews and other minority groups in concentration
camps. The Council argued that the State offended taxpaying Holocaust
survivors, reminding them of their trauma.

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JEWISH COMMUNITY, et al. v. STATE, et al.
Decision of the Court

¶5 The State moved to dismiss, arguing that the Council lacked
standing, the claim was not ripe, and the complaint failed to state a claim
that the use of lethal gas was unconstitutional. The court granted the motion
and dismissed the complaint for lack of standing, finding that the Council
had not alleged a “distinct and palpable injury.” The court found that the
funds used to purchase the gas were nominal. The court also found that the
connection between the injury and illegal act was “quite remote,” noting
that convicts sentenced to death before November 1992 could choose
between lethal injection and lethal gas. Seventeen convicts currently had
this choice. Of the two convicts whose executions were imminent at the
time, no one had chosen a gas execution. The court added that the Council
had not argued that the death penalty or lethal gas were unconstitutional
but only requested that the law exclude cyanide gas, which was a policy
matter under the scope of the legislature. We take judicial notice that after
the court’s ruling, both convicts were executed by lethal injection. The
Council timely appealed.

DISCUSSION

¶6 The Council argues that it has standing because the State
illegally expended taxpayer dollars to purchase cyanide gas for capital
punishment, violating the Arizona Constitution’s prohibition of cruel and
unusual punishment. We review the trial court’s grant of a motion to
dismiss and questions of standing de novo. Mills v. Ariz. Bd. of Tech.
Registration, 253 Ariz. 415, 420 ¶ 10 (2022); Brush & Nib Studio, LC v. City of
Phoenix, 247 Ariz. 269, 279 ¶ 34 (2019). In reviewing a motion to dismiss,
this court “assumes the truth of all well-pled factual allegations and
indulges all reasonable inferences therefrom.” Swift Transp. Co. of Ariz.
L.L.C. v. Ariz. Dep’t of Revenue, 249 Ariz. 382, 383 ¶ 3 (App. 2020) (quoting
Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419 ¶ 7 (2008)).

¶7 Unlike the United States Constitution, the Arizona
Constitution does not have a “case or controversy” requirement to establish
standing. See U.S. Const. art. III, § 2, cl. 1; Ariz. Const. art. VI; see, e.g., Sears
v. Hull, 192 Ariz. 65, 71 ¶ 24 (1998). Arizona courts are not, therefore,
“constitutionally constrained” to impose standing minimums, but follow
the doctrine of prudential standing, which we apply “as a matter of judicial
restraint” to avoid issuing advisory opinions and ensure cases are ripe and
“fully developed between true adversaries.” Mills, 253 Ariz. at 423 ¶ 23
(quoting City of Surprise v. Ariz. Corp. Comm’n, 246 Ariz. 206, 209 ¶ 8 (2019));
Sears, 192 Ariz. at 71 ¶ 24. Parties establish standing to bring a constitutional
challenge by alleging a “distinct and palpable injury” that “result[s] from
the putatively illegal conduct.” Mills, 253 Ariz. at 423 ¶ 24 (quoting Sears,

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JEWISH COMMUNITY, et al. v. STATE, et al.
Decision of the Court

192 Ariz. at 69 ¶ 16); Sears, 192 Ariz. at 70 ¶ 23. A “generalized harm shared
by all or by a large class of people is generally insufficient.” Mills, 253 Ariz.
at 423 ¶ 24.

¶8 Arizona taxpayers generally “may enjoin the illegal
expenditure of taxpayer dollars.” Welch v. Cochise Cnty. Bd. of Supervisors,
251 Ariz. 519, 524 ¶ 18 (2021); 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[.]”); Smith v. Graham
Cnty. Cmty. Coll. Dist., 123 Ariz. 431, 432 (App. 1979). But taxpayers must
“demonstrate 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.” Dail v. City of Phoenix, 128 Ariz.
199, 202 (App. 1980); see also Smith, 123 Ariz. at 433–34 (holding that the
taxpayer is not required to show pecuniary loss to have standing). “[T]he
taxpayer must first show some interest beyond a general desire to enforce
the law.” Dail, 128 Ariz. at 202. Thus,

‘[m]ere illegality is not enough. The very nature and purpose
of a taxpayer’s action, like the present one, presume that there
will be more than illegality in order to enable him to
intervene. The basic theory of such an action is that the illegal
action is in some way injurious to municipal and public
interests, and that, if permitted to continue, it will in some
manner result in increased burdens upon, and dangers and
disadvantages to, the municipality and to the interests
represented by it and so to those who are taxpayers . . . To be
entitled to this relief, when waste or injury is not involved, it
must appear that, in addition to being an illegal official act,
the threatened act is such as to imperil the public interest or
calculated to work public injury or produce some public
mischief.’

Id. (quoting Henderson v. McCormick, 70 Ariz. 19, 24 (1950)).

¶9 Here, the trial court properly granted the State’s motion to
dismiss based on lack of standing. Although the Council showed that
taxpayer funds were used to purchase cyanide and other chemicals, as well
as to inspect and refurbish the gas chamber, the Council did not allege a
distinct and palpable injury “resulting from the putatively illegal conduct.”
See Sears, 192 Ariz. at 70 ¶ 23. Merely alleging that the expenditures were
illegal, without demonstrating a present injury resulting from these
expenditures, fails to establish standing. Cf. Rogers, 247 Ariz. at 429

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JEWISH COMMUNITY, et al. v. STATE, et al.
Decision of the Court

¶¶ 11–12 (holding taxpayers had standing to challenge county’s illegal
expenditures in selecting contractors in violation of competitive bidding
statute).

¶10 First, the purchase of the gas and refurbishment of the gas
chamber were legal expenditures. Arizona courts have never found that
execution by lethal gas is cruel and unusual punishment. See, e.g., State v.
Spears, 184 Ariz. 277, 291 (1996) (holding that convict’s challenge to lethal
gas as cruel and unusual punishment had “no merit”); State v. Lopez, 175
Ariz. 407, 417 (1993) (rejecting argument that lethal gas is cruel and unusual
punishment). While the Arizona Constitution provides that the manner of
execution is by lethal injection, convicts sentenced to death before
November 1992 are entitled to choose between lethal injection and gas. See
Ariz. Const. art. 22, § 22; A.R.S. § 13–757; State v. McCray, 218 Ariz. 252, 259
¶ 27 (2008). If they fail to choose, the default method is lethal injection. Ariz.
Const. art. 22, § 22; A.R.S. § 13–757(B).

¶11 Second, the purchased gas and refurbished gas chamber have
not been used. Less than 20 convicts remain on death row who were
convicted and sentenced to death before November 1992. No convict has
currently elected to be executed by lethal gas. Thus, the Arizona
Constitution’s cruel and unusual punishment provision has not been
triggered. Nor has the underlying psychological injury—that the Council
alleged would occur in carrying out a cyanide gas execution—materialized.

¶12 The Council specifies that it challenges the use of cyanide gas,
not lethal gas in general. But the decision to explicitly exclude cyanide gas
from the Arizona Constitution and corollary statutes should be left to the
legislature. Because the Council has not alleged a distinct and palpable
injury, it lacks standing.

CONCLUSION

¶13 For the foregoing reasons, we affirm.

AMY M. WOOD • Clerk of the Court
FILED: AA

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