Gov. Janet Napolitano overstepped her authority when she issued an executive order barring employment discrimination against homosexuals who work for state agencies, a half-dozen legislators charged in a petition filed Monday with the state Supreme Court.
Napolitano violated the constitutional separation of powers by declaring in June that no state agency under her purview could discriminate against homosexuals in hiring, firing or disciplinary proceedings, the suit contends. That sort of decision clearly belongs to the Legislature, which sets policies for employment in state law, the petition argues.
The petition, the equivalent of a civil suit, asks that the Supreme Court void the governor's order as unconstitutional.
“This is a no-brainer,” said Rep. John Allen, R-Scottsdale, one of three East Valley lawmakers involved in the suit. “She is trying to circumvent the system for expedience and for political purpose instead of having the full debate and maybe winning the hearts and minds of people to her ideas. She's legislating through executive order.”
Other East Valley lawmakers who are listed as plaintiffs are Rep. Andy Biggs and Sen. Thayer Verschoor, both R-Gilbert. Biggs and Verschoor could not be reached for comment.
The petition was filed through the Scottsdale-based Alliance Defense Fund, which describes itself as a “unique Christian legal organization that works to protect and defend traditional family values, religious freedom and the sanctity of life,” according to its Web site.
Napolitano, a Democrat, signed the executive order last month at an event held by the Arizona Human Rights Fund, a gay and lesbian advocacy group. The order applies only to state agencies under her control. It does not apply to private employers, state universities or state agencies under the control of the Legislature or the courts.
Tim Nelson, Napolitano's general counsel, said the governor will fight to preserve her order. The executive order is akin to an administrative policy and does not make new law, Nelson said. Since it applies only to agencies the governor controls, she has the power to establish her standards for employment practices, so long as they are consistent with the law, he said.
“The employment policies of the executive branch are well within the discretion of the executive branch,” Nelson said. “It is well within the purview of the governor to say we are not going to discriminate against people on grounds that have nothing to do with job performance.”
Nelson said that the governor's order is to ensure the state gets the best workers available, and that similar orders have been signed by many Republican governors across the country.
At issue in the case is whether the Legislature has sole power to make employment policy for the state, according to the petition. Arizona courts have established a clear precedent that setting conditions of employment is a legislative power, according to the petition. The governor's power to set terms of employment is limited to only those administrative duties relegated by the Legislature, the petition states.
“In no case has the Legislature granted a blank check to the executive branch to amend any statute regulating public employment,” the petition states.
In fact, the Legislature has weighed in on the issue several times recently when it specifically defeated legislation that would include sexual orientation in anti-discrimination language in the law, said Gary McCaleb, a lawyer for the Alliance Defense Fund. Three bills with that aim were defeated in 2001. Last year, another proposal to bar discrimination based on gender identity or sexual orientation died in the House.
The governor's order went beyond an administrative function and into the realm of making policy, something that is reserved for the Legislature, McCaleb said. In effect, Napolitano was making new law, he said.
“She acted without authority,” McCaleb said. “There's a fundamental harm anytime you have one branch going out and taking over the role of the other one.”
Kathie Gummere, spokeswoman for the Arizona Human Rights Fund, said she doesn't believe the argument that the motive for filing the petition is a separation-of-powers issue rather than an aversion to granting protection to homosexuals working for the state. The Alliance Defense Fund has consistently fought efforts to extend protections to homosexuals, in Arizona and nationally, she said.
“It's unfortunate that with all of the issues that are currently in front of the Legislature that they would take the time and resources to challenge an order that does nothing but state that employees should be judged on nothing but their work performance,” Gummere said.