Delegation as Injury: Arizona Supreme Court Recognizes Legislative Standing to Challenge Voter‑Enacted Agency Powers and Clarifies VPA Limits in Montenegro v. Fontes

Introduction

In Montenegro v. Fontes, the Arizona Supreme Court addressed whether the leaders of the Arizona Legislature (the “Leaders”) have standing to mount a separation‑of‑powers and nondelegation challenge to the Voters’ Right to Know Act (Proposition 211), a voter‑approved statute imposing campaign‑finance disclosure requirements and assigning implementation and enforcement authority to the Citizens Clean Elections Commission (the “Commission”). The case arises from the Act’s conferral of broad regulatory and enforcement powers on the Commission—particularly A.R.S. § 16‑974(A) and a catch‑all authority in § 16‑974(A)(8)—and a provision, § 16‑974(D), insulating Commission rules and enforcement from “approval,” “prohibition,” or “limit” by any other state governmental entity, coupled with a conflicts clause (§ 16‑978(B)) favoring the Act over other state law.

The Leaders, duly authorized by both chambers to litigate on the Legislature’s behalf, argued that this scheme impermissibly delegates legislative power to the executive branch and, notwithstanding a severability clause, renders the entire measure invalid. After the superior court denied preliminary injunctive relief and the court of appeals found only partial standing and severed part of § 16‑974(D), the Supreme Court granted review on two questions: (1) whether the Leaders have standing to challenge § 16‑974(A) (and rules flowing from that delegation); and (2) whether § 16‑974(D) is severable.

The Supreme Court held: (1) the Leaders have standing to bring the challenge; and (2) severability is premature absent a merits ruling on constitutionality. It reversed the superior court, vacated the court of appeals’ opinion, and remanded.

Summary of the Opinion

• Standing: The Court held that legislative leaders, acting with institutional authorization from both chambers, have prudential standing to challenge the delegation provisions of Proposition 211, including § 16‑974(A) and related provisions. Crucially, the Court recognized the alleged “delegation of legislative power” itself as an institutional injury sufficient to support standing, even before the Commission takes an enforcement action that concretely conflicts with legislative prerogatives.
• Severability: The Court concluded that deciding severability now would be premature. Under Randolph v. Groscost, severability analysis depends on identifying which provisions are invalid. Because the merits of the nondelegation challenge were not before the Court, it declined to opine on severability in the abstract.
• Voter Protection Act (VPA): The Court clarified that the VPA shields only valid voter‑enacted laws from legislative alteration; it does not insulate unconstitutional provisions from judicial review. Separation of powers and the VPA operate as a two‑step: first, determine whether the initiative’s provisions are constitutionally valid; second, if valid, the VPA restricts legislative modification.
• Disposition: The Supreme Court reversed the trial court, vacated the court of appeals’ opinion (including its partial severance and injunction), and remanded for further proceedings on the merits and, if necessary, severability. No attorney fees were awarded at this stage.

Detailed Analysis

Precedents Cited and Their Influence

• Arizona’s prudential standing framework:
  • Bennett v. Napolitano, 206 Ariz. 520 (2003): Arizona’s Constitution lacks a federal‑style “case or controversy” requirement, making standing a prudential doctrine. Bennett denied standing to individual legislators absent institutional authorization and tangible injury. Here, by contrast, both chambers authorized the Leaders, addressing Bennett’s institutional authorization requirement.
  • Fay v. Fox, 251 Ariz. 537 (2021): Standing is prudential and can be waived; courts retain discretion but usually require a particularized injury, especially in interbranch disputes. The Court found sufficient institutional injury and did not need to waive prudential standing.
  • Mills v. Arizona Board of Technical Registration, 253 Ariz. 415 (2022): Standing and ripeness guard against advisory opinions, but the Court emphasized adversarial development. The posture here is adversarial and fully briefed.
• Institutional legislative standing:
  • Forty‑Seventh Legislature v. Napolitano, 213 Ariz. 482 (2006): The Legislature had standing to challenge a gubernatorial veto that inflicted a particularized institutional injury. The Court here analogized: an alleged unconstitutional delegation is itself an institutional injury.
  • Brewer v. Burns, 222 Ariz. 234 (2009): The Governor had standing based on a plausible, particularized injury; defendants’ merits arguments cannot defeat standing. Applied here, the existence of an institutional injury does not hinge on the Commission’s later conduct.
  • Biggs v. Cooper ex rel. County of Maricopa, 236 Ariz. 415 (2014): Legislators had standing where a supermajority requirement arguably negated their votes; plaintiffs need not exhaust political remedies before suing—similarly, Leaders here need not wait for enforcement actions.
  • Arizona State Legislature v. Arizona Independent Redistricting Commission, 576 U.S. 787 (2015): The U.S. Supreme Court unanimously recognized legislative standing to challenge a voter initiative that deprived the legislature of redistricting authority, characterizing the claim as an institutional injury. The Arizona Supreme Court drew on this rationale for standing despite differing constitutional texts.
• Arizona nondelegation and separation of powers:
  • Roberts v. State, 253 Ariz. 259 (2022): Separation of powers limits both the power that may be delegated and the method of delegation; agencies must be guided by an “intelligible principle” and cannot receive open‑ended lawmaking power. The Court quoted Roberts for the proposition that legislative power is “inalienable.”
  • State v. Marana Plantations, Inc., 75 Ariz. 111 (1953): A statute delegating “unlimited regulatory power” without prescribed restraints violates separation of powers. The Leaders’ complaint analogized § 16‑974(A) and (D) to the type of unconstrained delegation condemned in Marana Plantations.
  • Tillotson v. Frohmiller, 34 Ariz. 394 (1928), and Hernandez v. Frohmiller, 68 Ariz. 242 (1949): Neither the Legislature nor the People may delegate the legislative power to an administrative body; the initiative power does not alter separation‑of‑powers limits.
  • Roundtree v. City of Page, 573 P.3d 65 (Ariz. 2025): The People’s legislative power via initiative is coextensive with the Legislature’s, but coextensiveness does not suspend separation‑of‑powers limits.
• Severability:
  • Randolph v. Groscost, 195 Ariz. 423 (1999): Two‑part test for severability of voter‑approved measures—whether the valid portion is workable and independently enforceable; and whether severance would produce a result so irrational that an informed electorate would not have adopted the retained portion. The Court postponed severability until after any merits determination.
  • Cave Creek Unified School District v. Ducey, 233 Ariz. 1 (2013): The VPA restricts the Legislature’s ability to amend voter‑approved measures but does not address conflicts between such measures and other laws generally, reinforcing that the VPA’s protective scope is targeted and cannot cure constitutional defects.

Legal Reasoning

The Court’s standing analysis turns on two distinctive features of the Arizona Constitution: (1) the absence of a federal‑style “case or controversy” requirement, making standing prudential; and (2) an explicit separation‑of‑powers clause (Art. 3), which the Court regards as a structural limitation of central importance. Against that background, the Court emphasized:

• Inalienability of legislative power: Echoing Roberts and Marana Plantations, the Court characterized legislative power as “inalienable” and not subject to being “relinquished nor delegated” by either the Legislature or the People. On the pleadings, the Leaders alleged more than mere implementation authority—they targeted an allegedly “standardless” and “carte blanche” delegation to an executive agency coupled with a statutory shield against legislative oversight and a conflicts clause that privileges Commission rules in the event of conflict.
• Delegation as institutional injury: For standing purposes, the Court treated the alleged unconstitutional delegation itself as an injury to the Legislature’s institutional prerogatives. The injury is not contingent on whether the Commission subsequently uses that authority to thwart legislative action; rather, it arises from the transfer of lawmaking power outside constitutionally permitted bounds. Thus, unlike the dissent’s ripeness approach, the majority did not require a concrete enforcement conflict to materialize before recognizing standing.
• UDJA and adversarial posture: Proceeding under the Uniform Declaratory Judgments Act, the Leaders sought a declaration of rights and legal relations. The Court found the dispute sufficiently adversarial, fully briefed, and of broad public importance, reinforcing the prudential case for reaching standing.
• VPA’s limited role: The Court articulated a “two‑step” interaction between separation of powers and the VPA: first, determine whether the initiative’s provisions are constitutionally valid; only then does the VPA restrict legislative modification. The VPA cannot constitutionalize an otherwise unconstitutional delegation. Nor does § 16‑978(B) (Act governs in the event of conflict) simply mirror the VPA; the VPA limits legislative amendments to voter‑approved laws, not all forms of legal conflict.
• Severability deferred: Because the Court did not decide whether any specific provision violates separation of powers or the nondelegation doctrine, it declined to decide severability. It also declined to adopt a presumption against severability in the face of an express severability clause, leaving Randolph’s framework intact for application on a proper record.

The Dissent’s Position and Points of Tension

Chief Justice Timmer, joined by Justice Berch (Ret.), dissented, warning that recognizing standing without a concrete injury departs from decades of Arizona precedent requiring a “distinct and palpable injury.” The dissent emphasizes:

• Ripeness and specificity: Because the Commission has not used § 16‑974(A)(1) or (A)(8) to promulgate rules or take enforcement actions that usurp legislative power, the claimed injury is speculative. Standing should attach when the Commission acts in a way that concretely invades legislative prerogatives, not before.
• Balance with the People’s coequal authority and the VPA: Granting legislative standing on theoretical future conflicts risks elevating the Legislature over the People, enabling end‑runs around the VPA by inviting pre‑enforcement challenges to voter‑enacted laws on separation‑of‑powers grounds.
• Analogy dispute: The majority likened the alleged delegation to a stolen credit card; the dissent countered that, absent an exercise of the delegated power, nothing has yet been “stolen”—there is only an opportunity for misuse. Under the dissent’s view, courts should avoid adjudicating such hypothetical disputes.

The central tension is thus between a structural, status‑based view of injury (the “delegation‑as‑injury” doctrine) and a conduct‑based view (requiring concrete use of the challenged authority). Montenegro squarely embraces the former for prudential standing purposes in Arizona.

Impact and Implications

• Standing doctrine: Montenegro establishes that, in Arizona, an authorized legislative body can obtain judicial review of alleged unconstitutional delegations without waiting for an agency to take a specific enforcement step that collides with legislative prerogatives. This is a significant clarification and likely to encourage earlier judicial testing of structural challenges to voter initiatives and statutes that confer broad agency powers.
• Initiative drafting: Sponsors of voter initiatives delegating authority to agencies should expect heightened scrutiny where:
  • Delegations are framed in broad or standardless terms (e.g., “perform any other act”),
  • Agency actions are insulated from legislative oversight or generally applicable administrative law frameworks, or
  • A conflicts clause purports to give agency rules or the initiative blanket priority over other state laws.
  Clear statements of policy and intelligible principles guiding agency discretion will be critical.
• VPA jurisprudence: The Court’s “two‑step” articulation reinforces that the VPA’s shield is contingent on constitutional validity. Expect litigants to press separation‑of‑powers and nondelegation claims as gateways before VPA protections attach.
• Immediate practical effect: Because the court of appeals’ opinion was vacated, no portion of Proposition 211 is currently severed or enjoined by appellate mandate. On remand, the superior court will decide the merits of the separation‑of‑powers challenge and, if necessary, apply Randolph to severability—taking account of Proposition 211’s severability and reformation clause.
• Agency rulemaking and enforcement independence: Provisions like § 16‑974(D), which purport to bar “any” other state entity from limiting the Commission’s rules or enforcement, raise acute separation‑of‑powers concerns. Agencies should anticipate challenges to such insulation—even in voter‑enacted schemes—unless the text can be read narrowly to fit within constitutional bounds.
• Broader doctrine development: Montenegro continues Arizona’s modern nondelegation trajectory (see Roberts) emphasizing intelligible principles and preserving legislative choices. It may influence how courts treat catch‑all grants (“perform any other act”) and exemptions from the Administrative Procedure Act in initiatives and statutes.

Complex Concepts Simplified

• Prudential standing (Arizona): Unlike federal courts, Arizona courts are not constitutionally barred from hearing cases absent a “case or controversy.” Standing here is a judge‑made, prudential filter used to ensure disputes are concrete, adversarial, and appropriate for judicial resolution. Courts can, but need not, insist on strict injury requirements in every case.
• Institutional injury: An injury to a governmental body’s structural powers or prerogatives (e.g., the Legislature’s right to make law), as opposed to an individual’s personal injury. In Montenegro, the alleged unconstitutional delegation itself is treated as an institutional injury to the Legislature.
• Nondelegation doctrine: A separation‑of‑powers principle that bars the Legislature (and, in Arizona, the People acting by initiative) from transferring core lawmaking authority to the executive. Limited delegation is permitted if the law sets the policy and provides an “intelligible principle” to guide agency discretion.
• Intelligible principle: A standard or set of criteria in the statute that cabins agency discretion, ensuring the agency fills in details while the Legislature (or the People) retains the policy choice.
• Voter Protection Act (VPA): A constitutional feature protecting voter‑approved laws from legislative amendment or repeal unless stringent conditions are met (three‑fourths supermajority advancing the measure’s purpose). It does not, however, make unconstitutional provisions valid or bar courts from reviewing constitutionality.
• Severability (Randolph test): If a part of a voter‑approved measure is unconstitutional, courts ask (1) can the remaining parts function independently and sensibly; and (2) would the voters likely have adopted the remainder on its own, or would that result be irrational or absurd?

What to Watch on Remand

• Merits of the delegation challenge: The trial court must decide whether § 16‑974(A) (including the “perform any other act” clause) and related provisions, in context, provide sufficient intelligible principles and do not transfer legislative policy‑making to the Commission.
• Scope of any unconstitutional insulation: The trial court will likely scrutinize § 16‑974(D)’s breadth and interaction with Arizona’s separation‑of‑powers structure and general administrative law norms.
• Severability and reformation: If any provision is invalid, the court must apply Randolph to determine whether the donor‑disclosure core can be cleanly retained. Proposition 211’s severability clause also instructs courts to deem invalid provisions “reformed” to conform to applicable law and maximize the Act’s intent—courts will need to decide how far judicial “reformation” may permissibly go without rewriting the law.
• Operational status in the interim: With the court of appeals’ injunction vacated and no new injunction issued, the Act remains in effect pending further proceedings.

Conclusion

Montenegro v. Fontes marks a significant development in Arizona public‑law doctrine. First, it affirms that legislative leaders, acting with institutional authorization, have prudential standing to challenge an alleged unconstitutional delegation of legislative power—treating the asserted delegation itself as an institutional injury. Second, it clarifies that the Voter Protection Act shields only constitutionally valid voter‑approved laws; it does not preclude judicial review of constitutional defects or rehabilitate invalid provisions. Third, it leaves for another day the severability of any invalid provisions, reinforcing that Randolph’s context‑sensitive inquiry must follow—not precede—a merits determination.

The opinion’s practical effect is to open the courthouse door sooner for structural challenges to initiatives and statutes that confer broad or insulated agency authority, while leaving the substantive fate of Proposition 211 for adjudication on remand. For initiative drafters and agencies alike, Montenegro underscores the importance of including clear policy choices, meaningful standards guiding agency discretion, and careful calibration of any insulation from legislative or administrative oversight. For courts, it provides a principled, Arizona‑specific framework for evaluating legislative standing in separation‑of‑powers disputes, balancing respect for the People’s lawmaking power with the Constitution’s structural limits.