IN THE SUPREME COURT OF THE STATE OF ARIZONA
PAULA S. SEARS and ALAN E. SEARS,
wife and husband, on their own
behalf and on behalf of their
minor children ANNA MARIE SEARS,
REBECCA L. SEARS, ISAIAH S. SEARS,
and ISABELLA C. SEARS,
JANE DEE HULL, Governor of
Arizona; STATE OF ARIZONA; and
SALT RIVER PIMA-MARICOPA INDIAN
COMMUNITY, an Indian tribe
organized under the Indian
Reorganization Act of 1934,
Court of Appeals
No. 1 CA-CV 97-0507
No. CV 97-08942
O P I N I O N
Appeal from the Superior Court of Maricopa County
The Honorable B. Michael Dann, Judge
REVERSED AND REMANDED
Bryan Cave LLP
By: Neil Vincent Wake
Attorney for Plaintiffs/Appellees
Office of the Governor
By: Lisa K. Daniel, Counsel to the Governor
Attorney for Defendant/Appellant Governor Jane Dee Hull
Grant Woods, The Attorney General
By: Rebecca White Berch
First Assistant Attorney General
Thomas J. Dennis
Assistant Attorney General
Attorneys for Defendant/Appellant State of Arizona
Shea & Wilks, P.C.
By: Philip J. Shea
and Richard B. Wilks
and William W. Quinn
Osborn Maledon, P.A.
By: Andrew D. Hurwitz
and Thomas L. Hudson
Attorneys for Defendant/Appellant Salt River
Pima-Maricopa Indian Community
Dorsey & Whitney
By: Eric Eberhard
Attorneys for Amicus Curiae
Pasqua Yaqui Tribe of Arizona
Steptoe & Johnson LLP
By: David J. Bodney
and Peter B. Swann
By: Luis A. Ochoa
Attorneys for Amicus Curiae
Yavapai-Prescott Indian Tribe
State Capitol-House of Representatives
By: Donald W. Jansen
Attorney for Amicus Curiae
Jeff Groscost, Mark Anderson, Russel Bowers,
Marilyn Jarrett, Karen Johnson, and Tom Patterson
M c G R E G O R, Justice
Plaintiffs brought a special action in superior court to
enjoin the Governor from entering any gaming compact that permits
slot machine or keno gambling with the Salt River Pima-Maricopa
We hold that this action must be dismissed
because plaintiffs lack standing.
Because our opinion in Salt River Pima-Maricopa Indian
Community v. Hull, 190 Ariz. 97, 945 P.2d 818 (1997), sets forth in
detail most of the facts relevant to the instant action, we
describe only briefly the facts and procedure leading to this
In 1992, the Arizona Legislature enacted Arizona Revised
Statutes (A.R.S.) § 5-601, which authorized the Governor, acting on
the State’s behalf, to negotiate gaming compacts with the various
Indian tribes of Arizona pursuant to the federal Indian Gaming
Regulatory Act (IGRA).
Acting pursuant to section 5-601, Governor
Symington executed compacts with sixteen of the state’s twenty-one
However, relying on his interpretation of Rumsey Indian
Rancheria of Wintun Indians v. Wilson1 and Seminole Tribe of
Florida v. Florida,2 the Governor refused to negotiate any other
election, Arizona voters adopted Proposition 201, codified at
A.R.S. § 5-601.01, which requires that the Governor enter “the
41 F.3d 421 (9th Cir. 1994), amended
reh’g denied, en banc reh’g denied, 64 F.3d 1250
reh’g denied, 99 F.3d 321 (1996), cert. denied sub
of Mission Indians v. Wilson, ___ U.S. ___, 117 S.
517 U.S. 44, 116 S. Ct. 1114 (1996).
nom. Sycuan Band
Ct. 2508 (1997).
state’s standard form of gaming compact with any eligible Indian
tribe that requests it.”
The standard gaming compact includes
compacts, which permit slot machine and keno gambling.
Tribe), an eligible tribe under the terms of Proposition 201,
requested that the Governor execute a standard gaming compact.
Shortly thereafter, in February 1997,
Paula and Alan Sears (the
Sears) asked this court to accept jurisdiction over their special
action to enjoin Governor Symington from executing the requested
Governor Symington then responded to the Tribe’s request
The Tribe, dissatisfied with the proposed
compact, filed a special action in this court to invoke the
requirement of A.R.S. § 5-601.01 that the Governor enter into a
standard compact with any eligible tribe that requests it.
accepted jurisdiction and denied the Sears’ motion to intervene in
We found section 5-601.01 constitutional and held
Sears v. Symington, No. CV-96-0650-SA (Ariz. Feb. 12,
1997) (Supreme Court Order).
Salt River Pima-Maricopa Indian Community v. Symington,
No. CV-97-0090-SA (Ariz. Apr. 30, 1997) (Supreme Court Order).
that it required the Governor to enter into the standard gaming
compact with the Tribe.
Hull, 190 Ariz. at 105, 945 P.2d at 826.
Prior to our decision in Hull, however, the Sears filed
Governor Symington, the State of Arizona, and the Tribe.5
Sears argued that IGRA prohibits the Governor from entering any
gaming compact that permits slot machine or keno gambling.
Sears asserted that such a compact between the State and the Tribe
would result in casino gambling near Scottsdale, which borders the
Such gambling, the Sears asserted, would
community,” expose their children to values contrary to their own,
and result in “numerous negative secondary effects, including urban
crowding, traffic and stresses which will detract from the quality
of their immediate community.”
The Tribe moved to dismiss and, alternatively, to stay
the proceeding pending the disposition of Hull, arguing that the
Sears lacked standing to bring the action and that the dispute was
not ripe for decision.
The trial court denied both motions.
respect to the standing argument, the court stated that the Sears
After Governor Symington resigned from office in
September 1997, his successor, Governor Hull, was substituted as
Moreover, the court indicated that because the Sears’ claims raised
questions of public importance, the court could waive strict
The court subsequently granted judgment to the Sears and
awarded them attorneys’ fees.
appeal to the court of appeals.
The defendants filed a notice of
Upon the parties’ joint request,
we accepted a transfer of the appeal to this court. We have
jurisdiction pursuant to Arizona Constitution, article VI, section
The threshold question is whether, as defendants argue,
the Sears lack standing to bring this action.
Because we agree
that the plaintiffs lack standing, we do not address the merits of
In their complaint, the Sears relied solely on Arizona’s
mandamus statute, A.R.S. § 12-2021, to provide a jurisdictional
basis for their action.
That statute states in part:
A writ of mandamus may be issued by the supreme or
superior court to any person . . . on the verified
complaint of the party beneficially interested, to
compel, when there is not a plain, adequate and speedy
remedy at law, performance of an act which the law
specially imposes as a duty resulting from an office,
trust or station . . . .
The Sears argue that they need not demonstrate any special injury
to bring this action because, under the mandamus statute, they are
beneficially interested parties entitled to compel the Governor to
fulfill a public duty, i.e., to refuse to enter the standard gaming
compact with the Tribe.
We need not decide whether the Sears are “beneficially
interested” within the meaning of section 12-2021 because this
extraordinary remedy issued by a court to compel a public officer
to perform an act which the law specifically imposes as a duty.”
Board of Educ. v. Scottsdale Educ. Ass’n, 109 Ariz. 342, 344, 509
P.2d 612, 614 (1973).
Mandamus “does not lie if the public officer
is not specifically required by law to perform the act.”
Because a mandamus action is designed to compel performance of an
act the law requires, “[t]he general rule is that if the action of
a public officer is discretionary that discretion may not be
controlled by mandamus.”
P.2d 176, 179 (1940).
Collins v. Krucker, 56 Ariz. 6, 13, 104
In addition, this court has long held that
mandamus will lie only "to require public officers to perform their
official duties when they refuse to act," and not "to restrain a
public official from doing an act."
173, 333 P.2d 977, 978 (1958).
Smoker v. Bolin, 85 Ariz. 171,
Thus, the requested relief in a
mandamus action must be the performance of an act and such act must
requirements of an action for mandamus.
The Sears seek not to
compel the Governor to perform an act specifically imposed as a
duty but rather to prevent the Governor from acting.
Sears actually seek injunctive relief, which is not available
through an action for mandamus or any other form of special action.
See Rule 1, Ariz. R. P. Spec. Acts., 17B A.R.S. (1997).
The Sears also fail to show that the requested limitation
on the Governor’s actions involves the performance of a nondiscretionary act.
They attempt to make this showing by arguing
constitutions, as interpreted by the Sears, require the Governor to
refuse to enter the compact.
However, we held in Hull that, as a
matter of state law, A.R.S. § 5-601.01 required the Governor to
enter a standard compact.
Hull, 190 Ariz. at 105, 945 P.2d at 826.
Hence, under state law, the Governor’s execution of the standard
specifically imposed by law.
The most the Sears can establish is that they disagree
with the Governor’s interpretation of A.R.S. § 5-601.01 and of
IGRA, and, perhaps, with this court’s decision in Hull.
showing, if made, would not entitle the Sears to mandamus relief.
If we were to adopt the Sears’ argument, virtually any citizen
could challenge any action of any public officer under the mandamus
statute by claiming that the officer has failed to uphold or
fulfill state or federal law, as interpreted by the dissatisfied
Such a result would be inconsistent with section 128
2021, which limits a cause of action to beneficially interested
parties who seek to compel a public officer to perform “an act
which the law specially imposes as a duty resulting from an
A.R.S. § 12-2021; see Board of Educ., 109 Ariz. at 344,
509 P.2d at 614.
We conclude that the Sears’ action is not in the
nature of mandamus and therefore A.R.S. § 12-2021 does not apply.
The Sears further argue that they have standing to bring
this action, even apart from mandamus principles, and that, in any
event, this court should waive the standing requirement because of
the important public issues they raise.
To gain standing to bring an action, a plaintiff must
allege a distinct and palpable injury.
Warth v. Seldin, 422 U.S.
generalized harm that is shared alike by all or a large class of
citizens generally is not sufficient to confer standing.
499, 95 S. Ct. at 2205.6
See also Detroit Fire Fighters Ass’n v. City of Detroit,
537 N.W.2d 436, 438 (Mich. 1995) (stating that to have standing to
bring action challenging mayor’s refusal to spend appropriated
money, plaintiffs must show that “a substantial interest of the
litigant will be detrimentally affected in a manner different from
the public at large”); Jenkins v. Swan, 675 P.2d 1145, 1149 (Utah
1983) (“We will not entertain generalized grievances that are more
appropriately directed to the legislative and executive branches of
the state government.”); cf. State ex rel. Gebhardt v. Superior
Court, 131 P.2d 943, 947 (Wash. 1942) (“It is . . . a well
recognized principle that public wrongs or neglect or breach of
The Sears fail to allege harm of the nature required to
They allege that they live in northeast Phoenix,
two miles from the Scottsdale city limits, and that the proposed
gaming, the nearest location of which would be 3.2 miles from their
children’s school, will “expose their children to conduct contrary
to the values . . . which they wish to instill in their children.”
crowding, traffic and stresses which will detract from the quality
of their immediate community.”
Finally, the Sears allege that the
immediate community surrounding the proposed casino locations near
Scottsdale will suffer economic loss as a result of compulsive
gamblers’ attendant criminal activity and inability to remain
gainfully employed or to provide family support.
plaintiffs’ allegations as true, we conclude they have alleged only
generalized harm rather than any distinct and palpable injury.
The Sears alternatively argue that they have standing
under Arizona’s law of nuisance and zoning.
Even were we to ignore
the fact that the Sears did not bring this case as a nuisance or
zoning action, however, we would conclude they lack standing.
To achieve standing in an action for public nuisance, a
public duty cannot be redressed in a suit in the name of an
individual or individuals whose interest in the right asserted does
not differ from that of the public generally, or who suffers injury
in common with the public generally.”).
plaintiff must show that the defendant’s conduct caused “damage
special in nature and different in kind from that experienced by
the residents of the city in general.”
Armory Park Neighborhood
Ass’n v. Episcopal Community Servs. in Ariz., 148 Ariz. 1, 5, 712
demonstrate this rule of law and foreclose the argument that they
have standing under nuisance or zoning law.
In Armory Park, a neighborhood association brought an
action on behalf of the neighborhood homeowners to enjoin as a
public nuisance the operation of a food distribution center located
in the neighborhood.
Id. at 2, 712 P.2d at 915.
regularly attracted transients, who “frequently trespassed onto
residents’ yards, sometimes urinating, defecating, drinking and
littering on the residents’ property.”
Id. at 3, 712 P.2d at 916.
We held that the alleged damage was different in kind from that
experienced by the residents of the city in general; therefore, the
residents had standing to bring the nuisance action.
Id. at 5, 712
P.2d at 918.
Similarly, in Buckelew v. Town of Parker, 188 Ariz. 446,
937 P.2d 368 (App. 1996), a landowner brought suit against the town
zoning board to cure a zoning violation on property adjacent to the
The plaintiff alleged that he suffered special damage
caused by the adjacent property’s illegal use in the form of
“noise, threats of violence, increased litter, health and fire code
violations, increased danger of crime, and the destruction of his
188 Ariz. at 449, 937 P.2d at 371.
found standing because the plaintiff alleged harm distinct from
that suffered by the general public, notwithstanding that others in
the plaintiff’s immediate neighborhood suffered the same injury as
Id. at 452, 937 P.2d at 374.
Neither Armory Park nor Buckelew furthers the Sears’
argument, because the facts they allege to show that harm will
result from execution of the compact are, as a matter of law, not
sufficient to establish that the Sears, either by themselves or
with others, will suffer any special injury.7
The Sears further argue that they have standing to
challenge the constitutionality of A.R.S. §§ 5-601 and 5-601.01 on
grounds that the statutes violate the Special Laws Clause of the
The Sears also argue that they have standing because they
meet the criteria for standing in federal court. Because the Sears
have not alleged harm that is particular to them or that is any
different from the community in general, we think it unlikely that
they have standing to proceed in federal court. See, e.g., Lujan
v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 2136
(1992) (stating that, to gain standing, a plaintiff must allege an
injury that is personal and individualized to the plaintiff);
Metropolitan Wash. Airports Auth. v. Citizens for the Abatement of
Aircraft Noise, Inc., 501 U.S. 252, 264-65, 111 S. Ct. 2298, 2306
(1991) (finding personal injury to plaintiff in the form of
“increased noise, pollution, and danger of accidents,” as a result
traceable to defendant’s conduct; plaintiffs resided under flight
paths to and from airport controlled by defendant). In any event,
their argument does not affect this action, in which we hold that
they do not have standing to challenge the Governor’s action in
Arizona Constitution and the equal protection clauses of the state
constitutional challenge, however, a plaintiff must allege injury
resulting from the putatively illegal conduct.
121 Ariz. 12, 15, 588 P.2d 305, 308 (1978).
State v. Herrera,
Thus, the Sears must
show that they have been injured by the alleged equal protection or
special laws violation.
They fail to make this showing.
do not assert that the statutes discriminate in favor of some
person or persons or against the Sears, thereby depriving them of
Rather, they object to any law authorizing anyone to
engage in such gaming.
Thus, the Sears have not alleged any injury
that resulted from the alleged denial of equal protection of the
determination that they lack standing, this court should waive the
requirement of standing because of the great public importance of
constitution does not contain a “case or controversy” provision
constitutionally constrained to decline jurisdiction based on lack
Ariz. Const. art. IV, pt. 2, § 19; Ariz. Const. art. II,
§ 13; U.S. Const. amend. XIV, § 1.
However, Arizona courts consistently have required
as a matter of judicial restraint that a party possess standing to
maintain an action.
See Armory Park, 148 Ariz. at 6, 712 P.2d at
919; Herrera, 121 Ariz. at 15-16, 588 P.2d at 308-09; Alliance
Marana v. Groseclose, ___ Ariz. ___, 955 P.2d 43, 45 (App. 1997);
see also Dail v. City of Phoenix, 128 Ariz. 199, 624 P.2d 877 (App.
plaintiff did not have standing as a taxpayer or resident to
challenge a municipal contract).
The requirement is important: the
ensuring that true adversaries are before the court and thereby
assures that our courts do not issue mere advisory opinions.
Armory Park, 148 Ariz. at 6, 712 P.2d at 919.
Although, as a matter of discretion, we can waive the
circumstances, generally in cases involving issues of great public
importance that are likely to recur.
The paucity of cases in which
we have waived the standing requirement demonstrates both our
reluctance to do so and the narrowness of this exception.
In Rios v. Symington, 172 Ariz. 3, 833 P.2d 20 (1992), we
accepted jurisdiction notwithstanding the existence of “potential
In that case, the President of the State Senate
brought a special action challenging the constitutionality of the
Governor’s use of the line item veto.
The action therefore
involved a “dispute at the highest levels of state government,” and
impression in Arizona.
172 Ariz. at 5, 833 P.2d at 22.
Similarly, in Goodyear Farms v. City of Avondale, 148
Ariz. 216, 714 P.2d 386 (1986), we considered the merits of the
petitioners’ action, without addressing whether they had standing
to challenge the validity of a municipal annexation ordinance.
action required us to decide whether the Arizona statute governing
procedures for municipal annexation violated the equal protection
clauses of the federal and state constitutions.
Hence, the action
directly raised issues of great public importance that were likely
148 Ariz. at 217 n.1, 714 P.2d at 387 n.1.
State v. B Bar Enterprises, 133 Ariz. 99, 649 P.2d 978
circumstances quite different from those of this action.
In B Bar
challenged a public nuisance statute on grounds that the statute
deprived them of procedural and substantive due process.
the parties nor the court questioned appellants’ standing to raise
the due process challenges.
Although the appellants apparently
lacked standing to assert the privacy claim, we considered that
claim along with the due process claims.
The challenge in B Bar
Enterprises, as opposed to that asserted here, not only occurred in
conjunction with a constitutional claim properly argued by the
appellants, but also required us to determine the constitutionality
of an Arizona statute that had not previously been interpreted.
are hard-pressed to find other examples of this court’s willingness
to disregard the important requirement of standing.9
Unlike those unique cases discussed above, this action
does not present issues of such great public importance that we
should waive standing.
Essentially the Sears allege that the
proposed gaming activities will result in the deterioration of
their quality of life. This alleged injury, they argue, stems from
The Sears cite Fraternal Order of Police Lodge 2 v.
Phoenix Employee Relations Board, 133 Ariz. 126, 650 P.2d 428
(1982), as additional support for the proposition that this court
may disregard the doctrine of justiciability, of which standing is
a part, when deciding issues of great public importance.
Fraternal Order, we held that although the issue on appeal was
moot, we nonetheless would consider it because of the impact the
resolution likely would have on all Phoenix municipal employees and
residents and because the issue was likely to recur. 133 Ariz. at
127, 650 P.2d at 429. Although our state courts have decided moot
issues on occasion, they have done so generally only in cases
presenting issues of great public importance that are likely to
recur, or issues that evade review. See Big D Constr. Corp. v.
Court of Appeals, 163 Ariz. 560, 563, 789 P.2d 1061, 1064 (1990)
(deciding the state constitutionality of Arizona’s bid preference
statute). Like B Bar Enterprises and Goodyear Farms, in which the
challengers arguably lacked standing, other Arizona cases in which
the court decided moot issues involve fundamental questions of
constitutional or statutory construction. See, e.g., Camerena v.
Department of Pub. Welfare, 106 Ariz. 30, 470 P.2d 111 (1970)
(deciding the constitutionality of procedure for terminating public
assistance payments); State v. Superior Court, 104 Ariz. 440, 454
P.2d 982 (1969) (interpreting Arizona’s rape statute).
explain elsewhere in this opinion, this case does not raise
fundamental questions of statutory construction or of the
constitutionality of a statute or government action.
the State’s violations of IGRA, as interpreted by the Sears, and of
alleged violations of the state and federal constitutions caused by
the State’s entering the standard gaming compact with the Tribe.
In Hull, this court considered some of the challenges made here by
The remaining issues, which essentially reflect the
Neither does the New Mexico Supreme Court’s decision in
New Mexico ex rel. Clark v. Johnson, 904 P.2d 11 (N.M. 1995),
persuade us that we should waive standing.
In Johnson, two state
legislators and a private citizen brought a mandamus action seeking
to prohibit the governor of New Mexico from implementing gaming
petitioners asserted that the governor’s execution of the compacts
violated the state constitutional provision on separation of powers
committing the state to the compacts.
904 P.2d at 15.
to Arizona, however, neither the legislature nor the citizens of
New Mexico had expressly delegated to the governor authority to
petitioners’ claims therefore presented “issues of constitutional
and fundamental importance” with respect to separation of powers
required by the state constitution.
Id. at 18.
expressly authorized the Governor to execute the standard gaming
compacts,10 the serious constitutional issues that gave rise to the
Johnson court’s decision to confer standing do not exist here.11
A.R.S. § 5-601.01.A provides:
provisions of § 5-601, the state, through the
governor, shall enter into the state’s standard
form of gaming compact with any eligible Indian
tribe that requests it.
We are not alone in our reluctance to waive standing.
The decisions of other jurisdictions in which courts have waived
the requirement of standing or conferred standing reveal a
commonality of issues of constitutional or great public importance.
See, e.g., Management Council of the Wyo. Legislature v. Geringer,
953 P.2d 839 (Wyo. 1998) (whether governor had “constitutional
authority to veto portions of a bill which makes appropriations,
but which does not make any appropriation in the portion of the
bill that is vetoed”; plaintiffs were members of the state
legislature); Hawai’i ex rel. Bronster v. Yoshina, 932 P.2d 316
(Haw. 1997) (whether the state constitutional notice requirements
were met with respect to proposed constitutional amendments;
attorney general brought action, which raised issues likely to
recur); Detroit Fire Fighters Ass’n v. City of Detroit, 537 N.W.2d
436 (Mich. 1995) (whether mayor had discretion as to whether to
spend money appropriated by city council; issue was significant to
public and likely to recur); Madden v. Township of Delran, 601 A.2d
211 (N.J. 1992) (whether system of attorney representation for
indigent defendants was constitutional; court declined to address
defendant’s argument that plaintiffs lacked standing because the
issues presented were of great public importance); Burns v.
Sundlun, 617 A.2d 114 (R.I. 1992) (whether state statutes required
public approval by way of referendum before state could license
simulcasting of out-of-state programs in existing gambling
facilities); Wyoming ex rel. Wyo. Ass’n of Consulting Eng’rs & Land
Surveyors v. Sullivan, 798 P.2d 826 (Wyo. 1990) (whether state
statute was constitutional; court declined to decide whether
plaintiffs lacked standing); New Mexico ex rel. Sego v.
Kirkpatrick, 524 P.2d 975 (N.M. 1974) (whether governor’s exercise
We conclude that the Sears’ action does not raise issues
sufficiently important to bring this action within the narrow
boundaries that justify a waiver of standing.
For the foregoing reasons, we reverse the judgment in
favor of the Sears and remand to the trial court to dismiss the
action based on the Sears’ lack of standing.
Accordingly, we also
reverse the trial court’s award of attorneys’ fees in favor of the
Ruth V. McGregor, Justice
Thomas A. Zlaket, Chief Justice
Stanley G. Feldman, Justice
Frederick J. Martone, Justice
of “line-item veto” power was constitutional); Washington Natural
Gas Co. v. Public Util. Dist. No. 1, 459 P.2d 633 (Wash. 1969)
(whether public utility’s offering of inducements to its customers
to use electricity as opposed to natural gas was unconstitutional
or in violation of state law; issues directly involved “the
generation, sale and distribution of electrical energy within the
state” and would “immediately affect the management and operation
of public utility districts and other municipal corporations”
within the state).
J O N E S, Vice Chief Justice, specially concurring:
I concur in the judgment and rationale of the court.
separately, however, to remind the parties that today’s opinion,
once again, does not resolve the federal question identified and
discussed in the concurring opinion in Salt River Pima-Maricopa
Indian Community v. Hull, 190 Ariz. 97, 105, 945 P.2d 818, 826
That discussion, though still valid, need not be repeated
The issue, briefly stated, is whether IGRA authorizes the
tribe, via state compact, to conduct certain forms of Class III
prohibition against such gaming on non-tribal land.
In even simpler terms, the issue is whether the state may
approve, and whether the tribe may conduct, gaming activity which
the state, by law, has otherwise declared illegal.
raised the issue, but the court holds that plaintiffs lack judicial
standing to bring the action.
Accordingly, the court must dismiss
the case without reaching the controlling federal question.
Charles E. Jones, Vice Chief Justice