Arizona Supreme Court to hear appeal of Gov. Jan Brewer’s Medicaid expansion plan

Earlier this year, the Arizona Court of Appeals affirmed the Maricopa County Superior Court decision upholding former governor Jan Brewer’s Medicaid (AHCCCS) expansion plan in 2013. AZ Court of Appeals upholds Medicaid (AHCCCS) expansion plan.

The “Kochtopus” Death Star, the Goldwater Institute, which is litigating the case on behalf of our lawless Tea-Publican legislators who are parties to this lawsuit, of course appealed the decision to the Arizona Supreme Court. Jan Brewer’s Medicaid (AHCCCS) expansion plan goes to Arizona Supreme Court.

The Arizona Supreme Court has now said it will hear the appeal. The Arizona Capitol Times (subscription required) reports, AZ Supreme Court to decide on Medicaid tax:

The state’s high court agreed Tuesday to decide whether a levy that funds Arizona’s expanded Medicaid program was illegally enacted.

Without comment, the justices said they want to give foes of the levy — current and former state lawmakers — a chance to make the case that it really is a tax.

What the court decides will be significant, as it takes a two-thirds vote of both the House and Senate to raise taxes [the “Two-Thirds for Taxes” Amendment, Prop. 108 (1992)]. . And since the measure did not get that margin, a finding that the levy actually is a tax would mean the Arizona Health Care Cost Containment System, the state’s Medicaid program, could no longer collect it.

More significant, without the approximately $265 million being collected each year, the state could no longer afford to provide care to about 400,000 Arizonans who were added to the plan as a result of the 2013 action.

Tuesday’s action does not mean the justices have already reached a conclusion. But just the decision to review lower court ruling upholding the legality of the levy places it in potential jeopardy.

[Governor Brewer’s Medicaid expansion plan] was adopted by a simple majority of the House and Senate, with the Republican governor cobbling together a coalition of Democrats and some members of her own party to vote for it.

That led the GOP lawmakers who voted against it to file suit. While they were in the numeric minority, there actually were enough of them to block the levy if it really is a tax and really required a two-thirds vote.

Christina Sandefur, attorney for the Goldwater Institute, which is representing challengers, is arguing to the justices that they need to respect the 1992 voter-approved amendment to the Arizona Constitution requiring a two-thirds vote [Prop. 108].

She said it was designed as a check on new taxes. More to the point, Sandefur said it was specifically designed to empower a minority of lawmakers — in this case, just over a third — to [have veto power over] block new taxes.

Prop. 108 is the GOP’s weapon of mass destruction. It is undemocratic, and is the source of Arizona’s structural revenue deficits since 1992. The “Two-Thirds for Taxes” Amendment should be put before the voters again for repeal in order to restore simple democratic majority rule in tax and spending matters in the Arizona legislature.

That argument did not impress the Court of Appeals. In a ruling earlier this year, the judges said what the Legislature enacted does not fit within what the constitution defines as a tax.

Appellate Judge Paul McMurdie, writing for the three-judge panel, acknowledged the 2013 law empowered AHCCCS Director Tom Betlach to impose a levy. And that vote, he said, was approved by just a simple majority.

But he pointed out that the levy itself was not imposed by the Legislature.

“Instead, the levies are imposed by an entity with discretion to set and administer them,” the judge explained, meaning AHCCCS. And he said the constitutional provision requiring a two-thirds vote has a clear exception for fees set by a state agency.

Nor was the court impressed by Sandefur’s argument that even if Betlach gets to decide the amount of the assessment, it took an act of the legislature to authorize him to levy it.

“That is the most circular argument I think I’ve ever heard,” McMurdie told her during oral arguments.

The court also rejected Sandefur’s contention that the levy is a tax because the funds collected are being expended for “general public purposes.” That, she argued, is the very definition of a tax.

McMurdie conceded the ultimate goal of expanding Medicaid was to provide health care to more of Arizona’s working poor.

But he said the actual beneficiaries are the hospitals — the entities paying the levy — who have fewer people showing up at their doors unable to pay because they lack insurance.

The hospitals, for their part, never challenged the levy. That’s because Betlach structured it in a way so the amount charged would be less than the reduction in unpaid bills.

No date has been set for the hearing.

Justice Clint Bolick, who led the Goldwater Institute prior to being appointed to the Arizona Supreme Court and who had input into the filing of this lawsuit is conflicted out. Justice Bolick must recuse himself from participating in this appeal. I  anticipate his notice of recusal.

12 Responses to Arizona Supreme Court to hear appeal of Gov. Jan Brewer’s Medicaid expansion plan

  1. 8 elderly people just died in florida at a underfunded elder care facility. many more are in critical condition. the owner who was convicted of medicare fraud like gopig gov. rick scott said he didn’t have the money for a generator or place the elderly in other facilities. floriduh another republican state.

    • For Sure Not Tom

      It turns out there are laws that favor the owners of elder care facilities, making it impossible to hold the owners responsible for these deaths.

      Which is why Wall Street loves them as investments. All upside, no downside.

      And it’s Florida, where Pam Bondi is the AG, and she let Trump University off the hook for their crimes for the low price of a 25K campaign contribution.

      Florida may be slightly more corrupt that AZ.

  2. Sen. John Kavanagh

    I disagree with you but appreciate a reasoned argument, which you should use more often.

    Requiring a 2/3s vote, in my opinion, is not undemocratic, especially when passed by the most democratic process we have in Arizona. Imposing a higher bar for certain acts that have more serious consequences is not undemocratic. It is cautious.

    The fact that jurors have to be unanimous before convicting someone is not undemocratic, it is cautious because of the consequence of the vote. Likewise, the legislature needs a 3/4 majority to amend a voter passed measure and even then only if it furthers its goal? Is that undemocratic.

    Requiring supermajorities for especially consequential matters goes back a long way in history, (Ancient Rome) and is used in many places around the world today by many “enlightened countries and institutions (Denmark, the U.K. Canada, the EU and even the UN.”)

    So we disagree.

    • For Sure Not Tom

      Good point. All those other countries have single payer healthcare, too, so by your logic…

      A supermajority is not democratic by definition. It’s a sign of distrust in our leaders and not healthy. I get why people wanted one, but there are unintended consequences.

      You should study the disaster caused by another well intentioned voter approved tax limitation, California’s Prop 13.

      I agree with the good intentions of Prop 13, but in practice it’s been a nightmare.

      BTW, your jury example is apples vs. oranges, and a little horrifying. It’s a whole different paradigm. Voting on something we’ll all do together is nothing like the government accusing a person of a crime and threatening them with prison or death.

      Just because a “vote” is involved doesn’t make it the same.

      But it doesn’t matter, since the supermajority isn’t going anywhere, the majority is held hostage by the will of the few, my point is moot, and you win the day.

      • Sen. John Kavanagh

        I will not address the single payer comment because I assume it is just a friendly jab.

        I do not think that the supermajority is so much a sign of mistrust of either legislators or voters but an acknowledgement that some actions require greater caution and should not pass by a slim majority, especially at the polls where only 20 or 30 percent of the voters might come out.

        I did not intent for the jury comparison to be “apples to apples.” I used it to introduce the concept of consequences of different weight. Passing a tax increase has more impact than a memorial declaring the first day in April “Blog for Arizona Day.”

    • For Sure Not Tom

      And oh my god, did you really say an initiative is “the most democratic process we have in Arizona”?

      Weren’t you just trying to restrict voter initiatives? HB2244 and HB2404?

      • Sen. John Kavanagh

        It is. Do you know of a more democratic one? I suppose the referendum comes close but it is created by elected representatives of the people and not the people themselves.

  3. republicans have been trying to kill off poor sick people since I came to this state 60 years ago. and good government liberal democrats allow them to get away with it. remember when republicans wouldn’t allow access to spend money on operations a few years ago and people died. I remember when we were the only state that didn’t have medicade and children were dying for lack of funding for treatment. republicans are evil and you all know it. you wont support candidates who will eradicate the republican infestation.

  4. Sen. John Kavanagh

    “Prop. 108 is the GOP’s weapon of mass destruction. It is undemocratic…”

    So how can a proposition passed via the populist, citizen-initiated initiative process that passed with 72% of the vote be undemocratic?

    This blog should have a warning that reads, “This blog is logic-free. Turn off your reasoning ability before clicking into it.”

    • For Sure Not Tom

      I don’t speak for Blue Meanie, but I believe he’s saying that by imposing an artificially high bar for raising taxes you remove a more democratic simple majority from the process.

      The actual will of the people is stifled by the will of the few, in that sense it’s undemocratic.

      It’s a well intentioned but foolish way to manage government. it most certainly is not how you would manage a business.

      So while you’re half right, it was passed democratically, there is logic there for saying it defeats democracy as well, you just need to use some to find it.

      There should be a warning on your comments that reads, “this comment is not very well thought out, turn off your reasoning ability before reading it.”