Protesters banned from AZ Legislature lose round in court

In a new order, Judge Susan Brnovich said she is not ruling on whether Senate President Warren Petersen and House Speaker Steve Montenegro acted illegally earlier this year in banning some individuals associated with the group, also known as LUCHA, from attending future committee meetings after they were accused of creating a disturbance during legislative hearings.  

Nor did she decide whether the LUCHA members' First Amendment rights were violated, or whether Petersen and Montenegro have absolute immunity that prevents them from being sued for their decisions.

Instead, Brnovich said her decision comes down to the fact that the legislative session ended June 12. That means she cannot grant the LUCHA members' request, in a lawsuit filed in April, to order leaders of the Republican-controlled Legislature to let them back into the House and Senate buildings for the balance of the session.

The ruling was not a total loss for the challengers, however.

Brnovich said while the claim they brought is now legally moot, it remains possible they will find themselves in the same position when lawmakers reconvene in January. So the judge is giving the plaintiffs a chance to refile their lawsuit and seek a ruling defining the powers legislative leaders have to oust people from future meetings.

But Brnovich told them if they want her to consider their claims they have to spell out their "plausible and concrete'' plans to engage in the same protest activity next session. Only then, the judge said, will there be sufficient facts for her to decide whether to bar legislative leaders from preventing their future access to the Senate and House buildings.

Tossing out the case now means that, for the time being, there is no clear ruling on exactly how far the Senate president and House speaker can go, not just in removing people from a building for their immediate activities but in blocking them from reentering on future days.

An attorney for the individuals banned from the buildings said no decision has been made whether to pursue the case.

'Caterwauling chant'

The lawsuit stems from two separate hearings on Senate bills sponsored by Republicans.

SB 1635, crafted by Sen. John Kavanagh of Fountain Hills, would have made it a crime to alert someone else that law enforcement officers were looking for them if the intent was to delay or prevent that person's arrest. That bill never made it out of the Legislature.

The other, SB 1055, came from Flagstaff Sen. Wendy Rogers. It would have required state and local police to notify immigration officials when they arrest anyone who is "unlawfully present'' in the country. It was later vetoed by Democratic Gov. Katie Hobbs.

Attorney Jacqueline Mendez Soto said LUCHA members were given written notice that Petersen had banned them from the Senate building for the rest of the session due to "disorderly behavior.''

In a separate incident, Soto said another LUCHA member was banned from entering the House "for alleged activity outside in the public areas of the Capitol.''

She asked Brnovich to issue an injunction requiring Petersen and Montenegro "to rescind their unlawful restriction," saying their First Amendment rights were violated. 

But attorney Thomas Basile, representing the GOP leaders, said the lawsuit didn't tell the whole story.

In the case of SB 1635, he said that Rogers, chairing the Senate Committee on Judiciary and Elections, told those in attendance that a long agenda meant there would be only a limited number of speakers on each side of each bill, with each limited to 90 seconds. Basile said most participants acted with decorum but "the plaintiffs, however, chose another course, and launched a caterwauling chant that obstructed the committee's work and forced a recess.''

On SB 1055, he said protesters chose to express their views with "a cacophony of whistles and screaming that derailed the committee proceedings until they were escorted out of the room.''

Basile said the woman who was banned from the House was "bellowing through a bullhorn — just inches from a legislator's head — on a sidewalk immediately outside the Capitol.''

'Absolute immunity'?

But he urged Brnovich to toss the case without considering any of the specific claims, saying that legislators "are entitled to absolute immunity'' under federal laws that generally allow individuals to sue state or local government workers for violating their civil rights.

The key, said Basile, is that Petersen and Montenegro were acting in their official legislative capacity and that maintaining order and security during proceedings is a function of that job.

Anyway, he argued, the exclusion of the plaintiffs from hearings during the balance of the session "was reasonable and proportionate to the Legislature's legitimate interest in orderly proceedings.'' Basile also rejected arguments that the absolute ban from future hearings was excessive given what had occurred.

"The government need not wait until havoc is wreaked to restrict access to a nonpublic forum,'' Basile told the judge. "Here, it is beyond reasonable dispute that the plaintiffs did, in fact, knowingly derail committee proceedings by engaging in shouting, chanting, and whistle-blowing for the specific purpose of interrupting the committee's work. The defendants could permissibly prevent similar future shenanigans.''

Brnovich concluded all of that is legally irrelevant.

She said that, in general, courts are precluded from ruling on a bid for an injunction unless the plaintiffs can show three things: an injury, that the injury is traceable to the action being challenged, and that any court order will resolve the decision in favor of the challengers.

In this case, Brnovich noted, the legislative session is over. And that means any order she issued entitling the plaintiffs to attend further hearings this year would have no effect.

The judge said there is an exception to all this, however, when a case cannot be decided before the underlying action ceases. Here, the lawsuit was filed in April; the end of the session came two months later.

But there's another condition Brnovich said the challengers to the ban will have to show if they want her to consider whether GOP lawmakers acted illegally: They have to prove that they will be subject to the same action again in the future.

The judge said that the burden is on the LUCHA members who filed suit. She said that means they must articulate a "concrete plan'' to engage in similar actions "by giving details about their future speech, such as when, to whom, where, or under what circumstances.''