April 21, 2022
By Timothy Sandefur
The Goldwater Institute filed a brief in the Arizona Supreme Court today in engineer Greg Mills’ lawsuit against state bureaucrats who—he argues—have no legal authority to regulate his business. The bureaucrats say he can’t sue unless he first goes through a hearing before the state’s Board of Technical Registration. But Mills argues that the Board has no jurisdiction over him to begin with, so why should he have to go through that pointless exercise?
That may sound like a technical legal question, but it’s crucial for ordinary Arizonans because the cost and delay of going through a hearing in front of a state agency can be quite severe. Many—perhaps most—can’t afford it, meaning that they’ll have little opportunity to defend themselves against aggressive government agencies. That’s one reason why state law doesn’t require such a thing. Instead, if someone thinks an agency is exceeding its legal authority, he or she can ask a judge to issue an order blocking the agency from exercising that power. And that’s a logical rule: you shouldn’t have to submit to a bureaucratic agency’s power if you think it has no such power to begin with.
Nor is there any sense in imposing such a requirement on people, given that Arizona law was recently changed to make clear that if an agency rules against someone at a hearing, that person can appeal to a court—and is entitled to introduce new evidence there. What’s more, the judge must exercise independent judgment on all legal and factual questions—instead of deferring to the rulings of bureaucratic agencies. All of that means that there’s nothing to be gained by forcing Mills to go through a hearing before the very same agency that he says lacks power over him in the first place.
Nothing, that is, except more delay, expense, and red tape.
The power of bureaucratic agencies has become a hot topic in recent years because unelected regulators exercise extraordinary power—they effectively make law, investigate alleged violations of that law, decide whether people have broken that law, and punish them for doing so—all outside the separation-of-powers principles of our Constitution. Fortunately, in recent years, legislatures and courts have begun imposing real limits on the power of the Administrative State. Our brief urges the state’s high court to enforce those limits and protect the rights of Arizona entrepreneurs like Greg Mills.
(We filed a brief in an earlier stage in this case, too, which you can read here.)
Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute.