Montenegro v. Fontes

IN THE

SUPREME COURT OF THE STATE OF ARIZONA

STEVE MONTENEGRO, ET AL.,
Plaintiffs/Appellants,
v.

ADRIAN FONTES, ET AL.,
Defendants/Appellees,

and

KRISTIN MAYES, ET AL.,
Intervenors/Appellees.

No. CV-24-0166-PR
Filed September 29, 2025

Appeal from the Superior Court in Maricopa County
The Honorable Timothy J. Ryan, Judge
No. CV2023-011834
REVERSED AND REMANDED

Opinion of the Court of Appeals, Division One
258 Ariz 109 (App. 2024)
VACATED

COUNSEL:

Kory Langhofer (argued), Thomas Basile, Statecraft PLLC, Phoenix,
Attorneys for Arizona House of Representative Speaker Steve Montenegro

Craig A. Morgan, Shayna Stuart, Taft Stettinius & Hollister LLP, Phoenix,
Attorneys for Secretary of State Adrian Fontes

MONTENEGRO, ET AL. V. FONTES, ET AL.
Opinion of the Court

Mary R. O’Grady, Eric M. Fraser (argued), Emma J. Cone-Roddy,
Alexandria N. Karpurk, Osborn Maledon, P.A., Phoenix, Attorneys for
Arizona Citizens Clean Elections Commission

Daniel J. Adelman, Chanele N. Reyes, Arizona Center for Law in the Public
Interest, Phoenix, and David Kolker, Tara Malloy and Elizabeth D. Shimek,
Campaign Legal Center, Washington, DC, Attorneys for Voters’ Right to
Know

Alexander W. Samuels (argued), Nathan T. Arrowsmith, and Luci D. Davis,
Arizona Attorney General’s Office, Phoenix, Attorneys for Arizona
Attorney General Kristin K. Mayes

Nate Curtisi, Arizona Chamber of Commerce & Industry, Phoenix,
Attorney for Amicus Curiae Arizona Chamber of Commerce & Industry

Dominic E. Draye, Greenberg Traurig, LLP, Phoenix, Attorneys for Amici
Curiae Americans for Prosperity and Americans for Prosperity Foundation

Timothy Sandefur, Scharf-Norton Center for Constitutional Litigation at
the Goldwater Institute, Phoenix, Attorneys for Amicus Curiae Goldwater
Institute

_______________

JUSTICE BOLICK authored the Opinion of the Court, in which VICE CHIEF
JUSTICE LOPEZ and JUSTICES BEENE, MONTGOMERY, and KING
joined. CHIEF JUSTICE TIMMER and JUSTICE BERCH (Ret.) 1 dissented.
_______________

JUSTICE BOLICK, Opinion of the Court:

¶1 The plaintiffs here are the leaders of the Arizona Senate and
House of Representatives authorized by those bodies in a constitutional
challenge to the Voters’ Right to Know Act, a voter-approved statute that
requires disclosure of certain contributions used for campaign media

1 Justice Maria Elena Cruz is recused from this matter. Pursuant to article 6,

section 3 of the Arizona Constitution, Justice Rebecca White Berch (Ret.) of
the Arizona Supreme Court was designated to sit in this matter.
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spending and confers extensive enforcement powers upon the Citizens
Clean Elections Commission, a state agency. The legislative leaders claim
they have standing to bring this action because the initiative’s
impermissible delegation of legislative powers harms the Legislature. They
further argue that the challenged provisions are so inextricably entwined
with the initiative as a whole that, despite a severability clause, their
infirmity renders the entire measure void.

¶2 We hold that the legislative leaders have standing to
challenge the initiative. However, we also hold that it is premature to
determine the question of severability until a ruling on the constitutionality
of the challenged provisions, which is not yet before us.

BACKGROUND

¶3 This case involves a constitutional challenge to the Voters’
Right to Know Act. This statutory initiative established new campaign
finance disclosure requirements designed to prevent “the practice of
laundering political contributions,” otherwise known as “dark money.” See
Voters’ Right to Know Act, Proposition 211, § 2(C) (2022) (hereafter “Prop.
211” or “the Act”) (codified at A.R.S. §§ 16-971 to -979).

¶4 Under Prop. 211, “covered persons” who spend “more than
$50,000 in statewide campaigns or more than $25,000 in any other type of
campaigns” must disclose to the Secretary of State the identities of donors
who contribute more than $5,000 toward campaign media spending in an
election cycle. §§ 16-971(7), -973(A). These disclosures are made available
to the public and are reported to the Citizens Clean Elections Commission
(the “Commission”). § 16-973(H).

¶5 “The [C]ommission is the primary agency authorized to
implement and enforce [Prop. 211].” § 16-974(A). As relevant here, the
Commission’s enforcement authority empowers it to “[a]dopt and enforce
rules,” “[i]nitiate enforcement actions,” and “[p]erform any other act that
may assist in implementing [title 16, chapter 6.1].” § 16-974(A)(1), (3), (8).
The Commission has since promulgated several rules under Prop. 211,
which are not at issue here. See Ariz. Admin. Code R2-20-801 to -813.

¶6 “The [C]ommission’s rules and any [C]ommission
enforcement actions pursuant to this chapter are not subject to the approval
of or any prohibition or limit imposed by any other executive or legislative
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governmental body or official.” § 16-974(D). The Commission’s rules and
enforcement actions are also otherwise exempt from the Administrative
Procedure Act. Id. Additionally, “[t]o the extent the provisions of [Prop.
211] conflict with any state law, [Prop. 211] governs.” § 16-978(B).

¶7 Prop. 211 further specifies that its “provisions . . . are
severable.” Prop. 211 § 4. Thus, “[i]f any provision of this act or application
of a provision to any person or circumstance is held to be unconstitutional,
the remainder of this act, and the application of the provisions to any person
or circumstance, shall not be affected by the holding.” Id. In that instance,
“[t]he invalidated provision or provisions shall be deemed reformed to the
extent necessary to conform to applicable law and to give the maximum
effect to the intent of this act.” Id.

¶8 After Arizona voters approved Prop. 211, the House Speaker
and Senate President (the “Leaders”) initiated a facial challenge to
Prop. 211’s constitutionality against the Secretary of State and the
Commission. Each legislative chamber authorized the Leaders to act on
behalf of the Legislature by adopting rules authorizing them to assert
claims on each chamber’s behalf. The Arizona Attorney General and the
political action committee that sponsored Prop. 211 intervened in the case
to defend the measure. We refer to the Secretary of State, the Commission,
the Attorney General, and Voters’ Right to Know (which sponsored Prop.
211) collectively as the “Defendants.”

¶9 The Leaders sought relief under the Uniform Declaratory
Judgments Act (“UDJA”). They claimed that Prop. 211 violated
constitutional separation of powers, Arizona Constitution article 3, the
nondelegation doctrine, and the Voter Protection Act (“the VPA”), Arizona
Constitution article 4, part 1, § 1(6)(B)–(C). The Leaders also alleged that
three of the Commission’s rules promulgated under Prop. 211 “redefine
both individual terms and the overall scope of the Act.” See R2-20-801(B)
(omitting certain campaign activities from reporting requirements),
-803(D)–(E) (outlining additional procedures for donors to “opt out”), -808
(authorizing the Commission to issue advisory opinions).

¶10 The Leaders subsequently moved for a preliminary
injunction. The superior court denied the Leaders’ motion, finding that
(1) the Commission had not taken any enforcement action under Prop. 211,
and thus, the Leaders failed to allege a specific injury caused by the

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Commission; and (2) there was insufficient evidence that the Legislature
intended to introduce a bill “that may affect” Prop. 211 or that legislators
declined to take action due to “supposed uncertainty about Prop. 211.”
Toma v. Fontes, No. CV 2023-011834 at *4 (Maricopa Cnty. Super. Ct. Dec.
29, 2023).

¶11 The Defendants also filed separate and joint motions to
dismiss, contending that the Leaders lacked standing, failed to demonstrate
any injury to the Legislature’s authority, and failed to state a claim for relief.
The superior court denied the Defendants’ motions, resolving that “the
more effective and efficient way to deal with the issue” was to allow the
Leaders to cure any defects in their pleading. Id. at *2.

¶12 The Leaders appealed the superior court’s denial of injunctive
relief. The court of appeals found that the Leaders lacked standing to
challenge the entire chapter, but that they had standing to challenge
§ 16-974(D) to the extent it prevented the Legislature from passing any law
prohibiting or limiting the Commission’s rules or enforcement actions.
Toma v. Fontes, 258 Ariz. 109, 120–22 ¶¶ 40–45, 50–53 (App. 2024). The court
held that this portion of § 16-974(D) was unconstitutional but severable and
that the remaining provisions of Prop. 211 were enforceable. Id. at 125–26
¶¶ 73, 80–81, 84–86.

¶13 As a result, the court of appeals reversed the superior court’s
denial of a preliminary injunction in part, enjoining the “Defendants and
their agents . . . from enforcing § 16-974(D) to prohibit the Legislature from
passing legislation prohibiting or limiting the Commission’s rules or
enforcement actions.” Id. at 127 ¶ 92.

¶14 Defendants filed a petition for review, which this Court
granted to determine the following rephrased issues: (1) Do the Legislative
Leaders have standing to challenge § 16-974(A) and the rules flowing from
that delegation; and (2) Is § 16-974(D) severable from Prop. 211? These are
issues of broad public significance. The Court has jurisdiction over this
lawsuit pursuant to article 6, § 5(3) of the Arizona Constitution.

DISCUSSION

¶15 As the issues present purely questions of law, we review the
decisions below de novo. Roberts v. State, 253 Ariz. 259, 264 ¶ 7 (2022). We
address standing and severability in turn.
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1. Standing

¶16 The Leaders’ approach toward this lawsuit has shifted over
the course of this litigation. Initially, they characterized it as a facial
challenge to Prop. 211. A facial challenge requires the challenger to
demonstrate that the act cannot be constitutionally enforced under any set
of circumstances. AZ Petition Partners LLC v. Thompson, 255 Ariz. 254, 258
¶ 17 (2023). As the case appears before us, however, the Leaders focus on
specific provisions of the law that they contend violate separation of
powers, and they assert that the invalid provisions render the entire Act
unconstitutional. Regardless, we must determine whether they have
standing to challenge the law.

¶17 Our Constitution differs from the United States Constitution
in significant ways. Two distinguishing provisions, which are express in
one but not the other, are especially pertinent here. First, the Arizona
Constitution lacks a “case or controversy” requirement, which is the
foundation of the standing doctrine. Bennett v. Napolitano, 206 Ariz. 520, 525
¶ 19 (2003). But although separation of powers is implicit in the Federal
Constitution, it is express in the Arizona Constitution. Roberts, 253 Ariz.
at 268 ¶ 32 (“What the United States Constitution structurally implies, the
Arizona Constitution makes explicit. Our constitution’s framers devoted
an entire article to separation of powers . . . .”); see also Bennett, 206 Ariz. at
525 ¶ 19 (highlighting these constitutional differences).

¶18 The consequence of not having a case or controversy
requirement in our Constitution is that in Arizona, standing is a prudential
consideration rather than a mandatory prerequisite to suit. Fay v. Fox, 251
Ariz. 537, 541 ¶ 22 (2021). Surely, the parties here are adversarial to each
other over the issues in the lawsuit and have fully, vigorously, and capably
argued the law. So we clearly have a case or controversy in the literal sense
of the term. See generally Mills v. Ariz. Bd. of Tech. Registration, 253 Ariz. 415,
423 ¶ 23 (2022) (explaining that the doctrines of standing and ripeness
ensure, in part, “that issues be fully developed between true adversaries”
(quoting City of Surprise v. Ariz. Corp. Comm’n, 246 Ariz. 206, 209 ¶ 8 (2019))).
Moreover, the Leaders proceed under the Uniform Declaratory Judgments
Act, which among other things gives the courts “power to declare rights,
status, and other legal relations.” A.R.S. § 12-1831. This is precisely what
the Leaders seek from us here.

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¶19 But usually, especially when we are resolving disputes
between branches of government, we have also required some showing of
a particularized injury to establish standing. See, e.g., Brewer v. Burns, 222
Ariz. 234, 237 ¶¶ 11–12 (2009). For purposes of determining standing, we
assume that the plaintiffs are correct on the merits, id. at 237–38 ¶ 14,
although that is not a binding or even preliminary determination.
Moreover, because it is a prudential doctrine rather than a constitutional
mandate, we can waive standing. See Fay, 251 Ariz. at 541 ¶ 22. Here, as
will appear, it is unnecessary to do so because the Leaders have clearly
alleged particularized injury sufficient to confer standing.

¶20 The Leaders point to several Prop. 211 provisions that they
contend, in tandem, impermissibly transfer legislative power to the
Commission. A.R.S. § 16-974 provides an array of powers to the
Commission to implement and enforce the measure. In addition to
adopting rules, initiating enforcement actions, imposing penalties for
noncompliance, and so on, the Commission is empowered to “[p]erform
any other act that may assist in implementing this chapter.” § 16-974(A)(8).
The statute further provides that the “[C]ommission’s rules and any
[C]ommission enforcement actions pursuant to this chapter are not subject
to the approval of or any prohibition or limit imposed by any other
executive or legislative governmental body or official.” § 16-974(D). The
statute directs that “[t]o the extent the provisions of this chapter conflict
with any state law, this chapter governs.” § 16-978. As noted, the court of
appeals enjoined § 16-974(D) but held that the Leaders lacked standing to
challenge the other provisions of the statute.

¶21 The Leaders allege that these provisions constitute a broad,
standardless delegation of authority to the Commission, an executive
agency. Under the Arizona Constitution, “[t]he legislative authority of the
state shall be vested in the legislature,” and in the people acting by initiative
or referendum. Ariz. Const. art. 4 § 1. The power of the people to initiate
laws is coextensive with the power of the Legislature to enact them.
Roundtree v. City of Page, 573 P.3d 65, 70 ¶ 21 (Ariz. 2025). However,
separation of powers limits the delegation of legislative power to the
executive branch. Ariz. Const. art. 3.

¶22 In Roberts, the Court considered whether general language in
a statute implicitly authorized a state agency to adopt by rule the federal
Fair Labor Standards Act, its implementing regulations, agency guidances,

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and applicable federal judicial decisions. 53 Ariz. 259, 1012 ¶ 7. We held it
did not. Id. at 266–67 ¶¶ 19–26. Relevant to the issue here, we observed
that “[s]eparation of powers limits both the power that may be delegated
and the method by which it is delegated from the legislative branch to the
executive.” Id. at 268 ¶ 29. To delegate implementing authority requires
that the Legislature (here, the people) supply an “intelligible principle” to
guide the agency’s discretion. Id. at 268 ¶ 31 (quoting Gundy v. United
States, 588 U.S. 128, 135–36 (2019)). Put differently, “[t]he [L]egislature must
first make the policy choice, then it may delegate to [the agency] the power
to implement it.” Id. at 270 ¶ 43; see also State ex rel. Woods v. Block, 189 Ariz.
269, 275 (1997) (explicating the distinctive powers of the legislative and
executive branches).

¶23 Likewise, in State v. Marana Plantations, Inc., the Court held
that a statute investing the state Board of Health with the power to
formulate policies affecting public health, and to regulate sanitation
practices to promote public health, without limits or guides, violated
separation of powers. 75 Ariz. 111, 114 (1953). The Court observed that
although both the Legislature and the people may enact laws, “[i]t is
fundamental that the legislative power thus entrusted cannot be
relinquished nor delegated.” Id. (citing, inter alia, Tillotson v. Frohmiller, 34
Ariz. 394 (1928)). The Court held that “a statute which gives unlimited
regulatory power to a commission, board or agency with no prescribed
restraints nor criterion nor guide to its action offends the Constitution as a
delegation of legislative power.” Id. This type of open-ended delegation of
legislative power to the Commission by Prop. 211 is precisely what the
Leaders allege violates the Constitution here. As such, it is a “constitutional
relinquishment of the legislative power,” id. at 115, which as alleged
occasions an institutional injury.

¶24 Nor does the fact that the measure was passed by the people
rather than the Legislature alter the analysis. The constitutional reservation
to the people of the powers of initiative and referendum “do[es] not in any
way affect the division of powers; they remain the same. The people cannot
by an initiated law, any more than the Legislature can by an act passed by
it, delegate their powers to make laws to an agent or executive or
administrative body.” Tillotson, 34 Ariz. at 401.

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¶25 Thus, the Leaders unquestionably state a separation of
powers claim regarding the Prop. 211 provisions set forth above. The
measure purports to give the Commission carte blanche authority to
perform any act in furtherance of the measure, without limitation or
prohibition by the Legislature, and to establish hegemony for agency rules
over contrary statutes.

¶26 Notwithstanding any potential separation of powers issues
down the road, Defendants argue that the Legislature has suffered no
injury—and hence has no standing—because the Commission has yet to
take actions that invade the Legislature’s prerogative or inhibit its exercise
of legislative power.

¶27 Again, Roberts supplies the response: “the legislative power is
inalienable.” 253 Ariz. at 270 ¶ 43; see Inalienable, Merriam-Webster
Dictionary, https://www.merriam-webster.com/dictionary/inalienable
(last visited September 7, 2025) (defining “inalienable” as “incapable of
being alienated, surrendered, or transferred”); see also Marana Plantations,
75 Ariz. at 114 (instructing that the legislative authority of the state “cannot
be relinquished nor delegated”); Loftus v. Russell, 69 Ariz. 245, 255 (1949)
(explaining that the power to legislate is reserved for the people and the
legislature). As the Court stated categorically in Hernandez v. Frohmiller,
“[i]t is axiomatic that neither the [L]egislature nor the people can delegate
to an administrative board the power to legislate.” 68 Ariz. 242, 254 (1949).
The Leaders’ complaint alleges that Prop. 211 does exactly that. The alleged
injury, therefore, is not the exercise of legislative authority by the
Commission, nor any limitation imposed by the Commission on the
Legislature’s ability to legislate in this area of public policy, but rather the
delegation of legislative power to an executive agency.

¶28 As our cases abundantly demonstrate, the Legislature has
standing to challenge actions that inflict institutional injury. Defendants
rely heavily on Bennett, in which the Court ruled that individual legislators
did not have standing to challenge certain line-item vetoes by the Governor.
The legislators themselves did not claim injury as their votes were not
nullified. 206 Ariz. at 526 ¶ 26. Pertinent here, where “a claim allegedly
belongs to the Legislature as a whole,” four legislators could not allege
institutional injury “without the benefit of legislative authorization.” Id.
at 527 ¶ 29. Here, by contrast, the Leaders indisputably do have
authorization to sue on behalf of the Legislature.

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¶29 Perhaps most on point is Forty-Seventh Legislature v.
Napolitano, in which the Legislature as a whole challenged the Governor’s
veto of a portion of a state employee compensation bill. 213 Ariz. 482, 484
¶ 4-6 (2006). The Court distinguished Bennett on the ground that the
legislature “alleged a particularized injury to the legislature as a whole.”
Id. at 486 ¶ 14. The Governor argued that the Legislature nonetheless
lacked standing because it had not attempted to override her veto. The
Court concluded that “[t]he existence of the injury does not depend upon
and is not affected by whether the Legislature attempted to override her
veto.” Id. at 487 ¶ 17.

¶30 Similarly, even under the more stringent standing
requirements under the Federal Constitution, the U.S. Supreme Court
recognized legislative standing under circumstances similar to the present
case. In Arizona State Legislature v. Arizona Independent Redistricting
Commission, the Legislature argued that a citizen initiative giving
redistricting power to a state agency deprived it of its federal constitutional
authority over redistricting. 576 U.S. 787, 792–93 (2015). Although the
Court upheld the voter measure on the merits, the Court concluded
unanimously that the Legislature had standing to challenge it. As it argues
here, the Legislature alleged that the initiative would countermand its
authority, which the Court characterized as “an institutional plaintiff
asserting an institutional injury.” Id. at 802. As here, the Legislature did
not seek to assert its authority in a way that contravened the initiative. “To
assert standing,” the Court concluded, “the Legislature need not violate the
Arizona Constitution.” Id.

¶31 Other Arizona decisions are to similar effect. In Brewer, the
Governor argued that the Legislature violated the Constitution by
withholding finally passed bills from her review. 222 Ariz. 234, 236 ¶¶ 4-5
The Court held that the Governor had standing because she had “plausibly
alleged particularized injury,” whereas the Legislature’s argument to the
contrary went to the merits, and “defendants cannot defeat standing merely
by assuming they will ultimately win.” 222 Ariz. at 238 ¶ 14.

¶32 In Biggs v. Cooper ex rel. County of Maricopa, a group of
legislators was found to have standing to contest the adoption of a law by
a majority of the Legislature rather than a supermajority, because they had
sufficient votes to have blocked the measure if a supermajority was

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required. 236 Ariz. 415, 420 ¶¶ 18–19 (2014). The defendants argued that
the legislators had not sought to attempt to repeal the law or refer it to the
voters; however, once again, the Court emphasized that “the plaintiff
legislators need not exhaust all alternative political remedies before filing
suit.” Id. at 419 ¶ 17 (citing Forty-Seventh Legislature, 213 Ariz. at 487 ¶ 17);
accord Coleman v. Miller, 307 U.S. 433, 438 (1939) (holding that a majority of
state senators challenging the lieutenant governor’s tiebreaking vote “have
a plain, direct and adequate interest in maintaining the effectiveness of their
votes”).

¶33 The dissent urges a more stringent rule on standing in order
to prevent the Court from entangling in political and policy disputes. For
better or worse, we are called upon—and do—decide “political” disputes a
great deal, but only when they present tangible constitutional questions.
Ariz. Republican Party v. Richer, 257 Ariz. 237 (2024) (election law challenge);
State ex rel. Brnovich v. Ariz. Bd. of Regents, 250 Ariz. 127 (2020) (state
constitutional claims). By contrast, we do not decide policy questions, and
none are presented here. The Leaders assert a serious separation of powers
dispute; and as abundantly illustrated by the cases cited by both the
majority and dissent raising such issues, that presents a constitutional
rather than a political or policy question.

¶34 The dissent also contends the asserted injury is not tangible
or ripe because the Commission has not yet exercised its delegated
authority in a way that violates separation of powers. That is akin to
arguing that if your credit card is stolen, you can file suit only when the
thief uses it. Simply put, the Leaders assert an inalienable power has been
alienated. They need not challenge it use-by-use. The legislative power
belongs solely to the Legislature and the people. If it is given away, in
whole or part, it presents an institutional injury that creates standing. See,
e.g., Ariz. State Legislature, 576 U.S. at 802.

¶35 Defendants also argue that the VPA countermands the
Leaders’ arguments. The VPA is a constitutional provision enacted by the
people providing that any statute passed by popular vote may not be
superseded by the Legislature except upon three-fourths vote by both
chambers and then only if the change advances the measure’s purposes.
Ariz. Const. art. 4, pt. 1, § 1(14). The Legislature may freely supersede its
own statutes but not those passed by the voters.

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¶36 Defendants urge that the VPA weighs against the Leaders’
claims because it is as much a part of the Constitution as separation of
powers. That it is. But Defendants misapprehend the role the VPA plays
in protecting legislation passed by the people. The VPA cannot cure a
statute passed at the ballot of its constitutional infirmities. Because the
people, just like the Legislature, cannot enact a law that transgresses
separation of powers, only laws passed within their authority can be
shielded by the VPA against modification. Separation of powers and the
VPA essentially combine as a constitutional two-step: the first defines what
the three branches of government (including the people acting in their
legislative capacity) can do; the second protects valid laws enacted by the
people. The VPA does not enlarge the constitutional authority of the
people; it only protects their valid legislative handiwork against legislative
modification. In that regard, it provides an extra layer of separation of
powers, shielding popular enactments against alteration by the people’s
elected representatives.

¶37 Defendants also assert that one of the provisions the Leaders
challenge, § 16-978(B), is largely a restatement of the VPA because it
provides that when any conflict arises from the Act and other law, the Act
prevails. That is untrue, given that the VPA limits only legislative actions
that amend or supersede a statute passed by the voters. Cave Creek Unified
Sch. Dist. v. Ducey, 233 Ariz. 1, 4 ¶ 9 (2013). It does not address conflicts
between a voter-approved law and other laws and indeed provides that
“[t]his section shall not be construed to deprive the [L]egislature of the right
to enact any measure” except by the limitations specified. Ariz. Const.
art. 4, pt. 1, § 1(14).

¶38 Regardless, both of Defendants’ VPA arguments go to the
merits of the Leaders’ claims, not to their standing. We express no view on
the merits. But because the Leaders have alleged on behalf of the
Legislature a direct and tangible stake in the outcome of the litigation, they
have standing to pursue it. See Fay, 251 Ariz. at 541 ¶ 22 (“No injury is more
palpable or direct than infringement of a constitutional right.”). For that
reason, we need not consider whether to waive this prudential requirement.

2. Severability

¶39 Notwithstanding that the Act contains a severability clause
stating that if any provisions are invalidated the remaining provisions will
remain in effect, the Leaders contend that removing the unconstitutional
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provisions would render the Act as a whole unworkable, and therefore the
Act must be struck down in its entirety. Defendants respond that even if
the challenged provisions are declared unconstitutional, the remainder of
the law is entirely workable, especially given that the severed provisions
are ancillary to the principal subject-matter of the Act, which is donor
disclosure.

¶40 The Court set forth the standard for determining severability
of provisions in voter-approved ballot measures in Randolph v. Groscost:
“We will first consider whether the valid portion, considered separately,
can operate independently and is enforceable and workable. If it is, we will
uphold it unless doing so would produce a result so irrational or absurd as
to compel the conclusion that an informed electorate would not have
adopted one portion without the other.” 195 Ariz. 423, 427 ¶ 15 (1999).

¶41 A determination of severability is premature before a ruling
is made on whether, and to what extent, provisions of the Act are
unconstitutional. The merits are not before us, and we will not consider
severability in the abstract. The Leaders make a novel argument that we
should apply a presumption against severability, even where the voters
have enacted a severability provision as part of the measure. We will not
entertain such an argument nor consider whether Randolph should be
modified in any way, unless and until such questions are properly before
us.

ATTORNEY FEES

¶42 Plaintiffs request attorney fees pursuant to A.R.S. §§ 12-341,
-348, -348.01, -1840, and the private attorney general doctrine. Defendants
request attorney fees pursuant to § 12-348.01. As neither party has yet
prevailed, that issue is premature as well.

CONCLUSION

¶43 We reverse the trial court’s decision, vacate the court of
appeals’ decision, and remand to the trial court for further proceedings.

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Chief Justice Timmer, joined by Justice Berch (Ret.), Dissenting

TIMMER, C.J., joined by BERCH, J. (Ret.), Dissenting.

¶44 For decades we have steadfastly required a party seeking
relief in our courts to “allege a distinct and palpable injury.” Sears v. Hull, 192 Ariz. 65, 69 ¶ 16 (1998). This standing requirement reflects judicial
restraint, ensuring courts avoid advisory opinions, resolve ripe—not
hypothetical—controversies, and adjudicate disputes between genuine
adversaries. See Mills v. Ariz. Bd. of Tech. Registration, 253 Ariz. 415, 423 ¶ 23
(2022). By permitting the legislative leaders (“Leaders”) to challenge the
constitutionality of A.R.S. § 16-974(A) without the Legislature first suffering
injury, the majority departs from this precedent, simultaneously
diminishing the constitutionally granted legislative authority of our
citizens (the “People”) and risking court entanglement in future political
and policy disputes. Consequently, and with great respect for my
colleagues, I dissent.

¶45 The defendants did not seek review of the court of appeals’
decision that § 16-974(D) violates the Constitution. Thus, whether the
Leaders have standing to challenge § 16-974(D) is not before us. I concur
with the majority’s decision to remand this matter to the trial court to decide
in the first instance whether that provision is severable.

¶46 Section 16-974(A) authorizes the Citizens Clean Elections
Commission to “implement and enforce” the Voters’ Right to Know Act by
taking several actions, including “[a]dopt[ing] and enforc[ing] rules” and
“[p]erform[ing] any other act that may assist in implementing this chapter.”
See § 16-974(A)(1), (8). The Legislature frequently empowers executive
agencies, commissions, boards, and others to adopt and enforce rules. 2
Similarly, it is not uncommon for the Legislature to include catch-all
regulatory provisions like § 16-974(A)(8) to assist these entities in
implementing laws. 3 Both types of provisions are permissible under our

2
See, e.g., A.R.S. §§ 3-912(A) (“The director shall adopt rules to enforce this
chapter . . .“); 36-2023(A) (“The department shall adopt and enforce
rules . . .“); 44-1231.04 (“The attorney general shall adopt necessary rules to
implement and enforce the provisions of this article.”).
3
See, e.g., A.R.S. §§ 28-7673(D) (“The board and the department may . . . do
any other act necessary or appropriate to carry out the purposes of this
article . . .”); 40-336 (“The commission may . . . require the performance [by

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MONTENEGRO, ET AL. V. FONTES, ET AL.
Chief Justice Timmer, joined by Justice Berch (Ret.), Dissenting

Constitution as long as they do not transfer legislative authority to the
executive or judicial branches in violation of separation of powers. See Ariz.
Const. art. 3; see also Roberts v. State, 253 Ariz. 259, 268 ¶ 29 (2022) (“[T]here
are some ‘important subjects, which must be entirely regulated by the
legislature itself’ and others ‘of less interest, in which a general provision
may be made, and power given to others to fill up the details.’” (quoting
Wayman v. Southard, 23 U.S. 1, 20 (1825))); State v. Marana Plantations, Inc.,
75 Ariz. 111, 114 (1953) (acknowledging the difficulty in marking the
“boundary between administrative and legislative power” but concluding
“that a statute which gives unlimited regulatory power to a commission,
board or agency with no prescribed restraints nor criterion nor guide to its
action offends the Constitution as a delegation of legislative power.”).

¶47 The Leaders allege that § 16-974(A)(1) and (A)(8)
unconstitutionally transfer legislative power to the Commission. But even
if they are correct, that is not enough to confer standing. See Ariz. State
Legislature v. Ariz. Indep. Redistricting Comm’n, 576 U.S. 787, 800 (2015)
(stating standing “in no way depends on the merits” of the claim (quoting
Warth v. Seldin, 422 U.S. 490, 500 (1975))). They must “plausibly allege[]” a
particularized injury from § 16-974(A)’s enactment. See Brewer v. Burns, 222
Ariz. 234, 238 ¶ 14 (2009). In my view, they have not done so, making their
claims premature.

¶48 Nothing in § 16-974(A)(1) or (A)(8) prevents the Legislature
from exercising its power or interferes with any legislative action. Notably,
the Leaders do not allege that the Commission has promulgated any rules
or taken other actions that usurp the legislative function. The Commission
may or may not use the authority granted by § 16-974(A)(1) and (A)(8) to
exercise legislative power. If it does, affected parties, which may include
the Legislature, can then challenge the Commission’s action and
§ 16-974(A)(1) or (A)(8) as violating the separation-of-powers and
non-delegation doctrines. See Marana Plantations, 75 Ariz. at 115 (finding
agency regulations illegal that were based on a statute improperly
delegating legislative authority). But until then, any future injury from

public services corporations] of any other act which health or safety
requires.”); 41-743(B)(3)(j) (“The director shall . . [a]dopt rules . . . [that]
include . . . [a]ny other aspects of personnel administration as determined
by the director.”); 48-558(A) (“The governing body shall provide an
appropriate procedure . . . for any other act or thing which may become
necessary or proper to carry out the intent and purpose of” listed statutes).
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MONTENEGRO, ET AL. V. FONTES, ET AL.
Chief Justice Timmer, joined by Justice Berch (Ret.), Dissenting

§ 16-974(A)(1) and (A)(8) is speculative, and the Leaders therefore lack
standing to challenge it. See Mills, 253 Ariz. at 425 ¶ 31; Ariz. Creditors Bar
Assoc., Inc. v. State, 257 Ariz. 406, 410 ¶ 14 (App. 2024). Thus, this case is
unlike ones in which the Legislature possessed standing to challenge a law
because it realized an immediate, tangible injury. See Ariz. Indep.
Redistricting Comm’n, 576 U.S. at 793 (concluding the Arizona Legislature
had standing to challenge a voter-enacted law because it deprived the
Legislature of authority to draw congressional districts); Forty-Seventh
Legislature v. Napolitano, 213 Ariz. 482, 486–87 ¶¶ 14–15 (concluding the
Legislature sustained institutional injury when the Governor’s line-item
veto overrode the Legislature’s right to have the votes of a majority rather
than a supermajority given effect); see also Brewer, 222 Ariz. at 237–38
¶¶ 12–14 (deciding the Governor had standing because she alleged that the
Legislature’s failure to transmit finally passed bills prevented her from
approving or vetoing those bills).

¶49 The majority reaches a contrary decision, agreeing with the
Leaders that the Legislature suffers an institutional injury if § 16-974(A)(1)
and (A)(8) is found to delegate legislative authority to the Commission to
perhaps act in the future in a way that might infringe on the legislative
prerogative. See supra ¶ 27. My colleagues reason that “legislative power
is inalienable,” and therefore “[it] is not the exercise of legislative authority”
but “the delegation of legislative power to an executive agency” that inflicts
injury on the Legislature. See supra ¶ 27. I strongly disagree.

¶50 First, the fact legislative power is inalienable does not mean
that delegation of that power immediately results in injury. Until that
power is impermissibly exercised by another branch, a separation-of-powers
violation does not occur, and the Legislature is not injured. See Ariz. Const.
art. 3 (providing that each branch of government “shall [not] exercise the
powers properly belonging to either of the others” (emphasis added)). Any
illegal exercise of legislative authority by the Commission here is currently
theoretical; no constitutional violation has yet occurred, and any injury is
thus speculative. See Mills, 253 Ariz. at 425 ¶ 31 (concluding that plaintiff’s
claim that two statutes “combine[d] to establish an unconstitutional
delegation of judicial power to an administrative board” was not ripe for
declaratory relief because the board had not initiated proceedings against
the plaintiff, making the claim speculative).

¶51 The majority likens the delegation of legislative authority to a
stolen credit card that the thief has not yet used. See supra ¶ 34. My
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Chief Justice Timmer, joined by Justice Berch (Ret.), Dissenting

colleagues argue that just as the theft victim can sue the thief, the
Legislature has standing to sue here even though the Commission has not
exercised legislative authority. See id. Catchy, but the analogy falls apart
upon inspection. Unlike the credit card thief, the Commission has not taken
anything or violated a law. It was simply delegated authority by the
People, acting in their legislative capacity. At most, the Commission is only
poised to take legislative authority. Until the Commission exercises that
authority, however, it is more like a person who is given an opportunity to
steal a credit card but has not yet done so. And just as the would-be victim
lacks standing to sue that thief, so do the Leaders here.

¶52 Tellingly, in cases the majority relies on, see supra ¶¶ 29–32,
the Legislature, Governor, or bloc of representatives experienced an
immediate, tangible injury as a result of the complained-of action and
consequently possessed standing to challenge the action. See Ariz. Indep.
Redistricting Comm’n, 576 U.S. at 793 (loss of “authority to draw
congressional districts”); Biggs v. Cooper, 236 Ariz. 415, 419 ¶ 13 (2014)
(negation of bloc of representatives’ votes that were otherwise sufficient to
defeat enactment of law); Brewer, 222 Ariz. at 237–38 ¶¶ 12–14 (loss of
ability to veto “finally passed bills”); Forty-Seventh Legislature, 213 Ariz.
at 486 ¶¶ 13–15 (2006) (loss of “right to have the votes of a majority given
effect” after being overridden by a line-item veto). There is no such actual
or threatened injury here because the Commission has not exercised any
authority under § 16-974(A)(1) or (A)(8) in a manner that allegedly injures
the Legislature. Unless and until that occurs, any harm from the mere
existence of § 16-974(A)(1) or (A)(8) is too generalized to support standing.
See Mills, 253 Ariz. at 423 ¶ 24 (stating that “a generalized harm shared by
all” is generally insufficient to confer standing).

¶53 Second, granting standing here upsets the constitutional
balance between the Legislature and the People, who share coequal
lawmaking power. See Ariz. Const. art. 4, § 1; Roundtree v. City of Page, 573
P.3d 65, 70 ¶ 21 (Ariz. 2025). Recognizing legislative standing without
tangible injury elevates the Legislature above the People, allowing it to
challenge voter-enacted laws merely because it disagrees with how the
People chose to exercise their share of authority. This is something the
People could never do in return. See Mills, 253 Ariz. at 423 ¶ 24
(disallowing standing for “generalized harm” suffered by all).

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MONTENEGRO, ET AL. V. FONTES, ET AL.
Chief Justice Timmer, joined by Justice Berch (Ret.), Dissenting

¶54 Third, the majority’s analysis, with respect, is incautious.
Although standing and ripeness are prudential doctrines, we should
rigorously apply them in challenges by the Legislature against laws enacted
by the People. The Voter Protection Act (“VPA”) enshrined in our
Constitution reflects the People’s will that the Legislature cannot repeal or
easily change laws enacted by initiative or referendum. See Ariz. Const.
art. 4, pt. 1, § 1(6)(B). Thus, we should insist that the Legislature allege
actual or imminently threatened injury from a voter-enacted law before we
adjudicate whether to void that law—an action the VPA explicitly prohibits
the Legislature from taking on its own. Otherwise, we risk both violating
the will of the People and being drawn into political and policy disputes
between the People and the Legislature. Cf. Bennett v. Napolitano, 206 Ariz.
520, 525 ¶ 20 (2003) (“Without the standing requirement, the judicial branch
would be too easily coerced into resolving political disputes between the
executive and legislative branches, an arena in which courts are naturally
reluctant to intrude.”); see also Raines v. Byrd, 521 U.S. 811, 819–20 (1997)
(“[O]ur standing inquiry has been especially rigorous when reaching the
merits of the dispute would force us to decide whether an action taken by
one of the other two branches of the Federal Government was
unconstitutional.”).

¶55 Here, the majority grants the Leaders automatic standing
merely because they allege a potential, future violation of the
separation-of-powers and non-delegation doctrines. This is imprudent.
Doing so unlocks a door for future Legislatures seeking to make an end-run
around the VPA in an attempt to void laws enacted by initiatives and
referenda by merely alleging a plausible separation-of-powers or
non-delegation violation based on theoretical, future events. Because this
may thwart the People’s will, we should require a tangible injury to the
Legislature before granting it standing to challenge voter-enacted laws.

¶56 In sum, I conclude the trial court correctly refused to
preliminarily enjoin § 16-974(A) because at this time the Leaders are not
likely to prevail on the merits. The Leaders do not have standing, and the
challenge is premature.

18