Legislators sue Napolitano for usurping legislative authority
PHOENIX – Six Arizona state legislators filed a special action today against Governor Napolitano for usurping legislative authority by issuing Executive Order 2003-22 on June 21. The order added sexual orientation to the categories for which state agencies cannot legally discriminate in hiring and firing.
The Alliance Defense Fund, America’s largest religious freedom public interest legal alliance, represents the legislators.
"The executive order reaches into the exclusive province of the legislature; it exceeds the scope of the executive power and should be invalidated," said Gary McCaleb, legal counsel with the Alliance Defense Fund. "Arizona statute prohibits employment discrimination because of race, color, religion, sex, age, disability or national origin. Only the legislature can change that list."
Several bills seeking to add sexual orientation to the list of protected employment categories have been brought to the Arizona legislature, and the legislature has rejected all of them. "Our clients object to the Governor so clearly usurping authority from a co-equal branch of government. The Governor’s job is to enforce laws approved by the legislature, and not to attempt to legislate by Executive Order," McCaleb said.
The petitioners are state Representatives Andy Biggs, Linda Gray, John M. Allen, Joe Hart, Doug Quelland and state Senator Thayer Verschoor.
Arizona has perhaps the strongest constitutional separation of powers, McCaleb explained. "And Arizona courts have confirmed the state’s strict separation of legislative and executive power in several cases," McCaleb said. "Arizona courts have said ‘the concept of the separation of powers is fundamental to constitutional government as we know it.’"
To determine whether a violation of separation of powers has occurred, the court looks at four factors: 1) the essential nature of the powers being exercised; 2) the degree of control by the legislative department in the exercise of the power; 3) the objective of the Legislature; and 4) the practical consequences of the action.
"Arizona Executive Order 2003-22 clearly fails this test," McCaleb said.