Madeleine ParrishArizona Republic
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The U.S. Supreme Court denied a request from the leaders of the Arizona Legislature to block a court order requiring them to sit for questioning about the motives behind a law that bars transgender girls from competing on girls' school sports teams.
The decision also forced the legislative leaders to disclose several emails related to the passage of that 2022 law.
Though they were not named as defendants, Arizona Senate President Warren Petersen, R-Gilbert,and House Speaker Ben Toma, R-Glendale, intervened to defend the statute from a lawsuit filed by the parents of two transgender girls. Arizona Attorney General Kris Mayes, a Democrat, had disqualified herself from defending the law.
The suit, filed in April 2023, alleged the law violates the U.S. Constitution's equal protection clause, Title IX, the Americans with Disabilities Act and the Rehabilitation Act. It named Superintendent of Public Instruction Tom Horne as a defendant in his official capacity, as well as the Arizona Interscholastic Association, The Gregory School, the Kyrene School District and Kyrene Superintendent Laura Toenjes in her official capacity. Horne is defending the law, in addition to Toma and Petersen.
In July 2023, U.S. District Judge Jennifer Zippsissued a preliminary injunctionallowing the two girls to play on girls' sports teams as the case proceeded.
In March, attorneys for the plaintiffs filed a motion to compel Petersen and Toma to produce five documents they withheld during the discovery process — emails to and from legislators related to the law. They argued the documents were "highly relevant" to their claims that the law was "discriminatory and violated the Constitution and multiple federal statutes."
Subject lines of the withheld emails included "Fw: Womens Sports Talking pts," "Save Women's Sports Act 2022 Talking Points" and "Re: SB 1165," according to court documents.
In June, Zipps sided with the plaintiffs' attorneys and ordered Toma and Petersen to turn over the emails, after the court had privately reviewed them. Zipps also ruled that Toma and Petersen must submit to being questioned under oath.
She wrote that these disclosures might "shed light" on whether the Legislature acted within a "constitutionally permissible purpose" in enacting the law and were therefore relevant to the plaintiffs' claims that the law violated the equal protection clause. The government "must establish that its sex-based classification is substantially related to an important government objective" to overcome the equal protection challenge, Zipps wrote.
One of Toma and Petersen's arguments for withholding the documents was they were protected from disclosure due to legislative privilege, a "qualified privilege that shields legislators from the compulsory evidentiary process," Zipps wrote. However, Zipps ruled Toma and Petersen had waived their legislative privilege by "voluntarily participating in this lawsuit and putting their intent at issue."
The U.S. Court of Appeals for the 9th Circuit denied Toma and Petersen's appeal of Zipps' order.
Toma and Petersen then took the issue to the Supreme Court, imploring the justices to weigh in on the question of whether, in a lawsuit challenging the constitutionality of a state law, leaders of a state legislature waive legislative privilege's protections "when they exercise their statutory right to intervene to defend the law."
Their lawyers argued the district court erred when it ruled Toma and Petersen had waived their legislative privilege by stepping in to defend the 2022 law.
Toma and Petersen's lawyers also petitioned the Supreme Court to consider whether, in intervening to defend a law, legislative leaders waive protections of the Morgan doctrine, which comes from a 1941 Supreme Court decision and states that a party can't involuntarily depose a "high-ranking government official" unless there are "exceptional circ*mstances." In her order, Zipps wrote that the Morgan doctrine did not apply in this instance because Toma and Petersen had "voluntarily joined" the lawsuit.
Lawyers for Toma and Petersen asked the Supreme Court to stay the lower court's order while the justices considered those questions, arguing the legislative leaders would be irreparably harmed if the order took effect.
Justice Elena Kagan on Sept. 3 denied their request to stay the order.
On Sept. 4, lawyers for Petersen and Toma handed over 14 pages of documents to the plaintiffs' attorneys, according to court records. In their petition to the Supreme Court, the legislative leaders' lawyers said the five withheld email documents totaled 14 pages. Lawyers for the parties did not respond to inquiries from The Arizona Republic.
The Supreme Court has not yet responded to Toma and Petersen's petition to consider the questions related to legislative privilege. On Aug. 30, 22 states with Republican attorneys general filed a brief in support of Toma and Petersen's petition.
Reach the reporter at mparrish@arizonarepublic.com.
