Flagstaff Living Wage Coalition lawsuit is correct on the law

The Arizona Capitol Times (subscription required) reported this week that a Flagstaff group is pushing to allow cities to adopt ‘living wage’ laws:

RaiseTheWageA Flagstaff group is going to court as a first step that could allow all Arizona cities to adopt their own “living wage” laws.

The lawsuit asks a Maricopa County Superior Court judge in essence to void a 2013 law which declares that only the state can regulate employee benefits, including compensation. That statute spells out that things like wages are “not subject to further regulation by a city, town or other political subdivision of this state.”

But attorney Mikkel Jordahl contends the law was enacted illegally.

He points out that voters in 2006 approved creation of a state minimum wage. That law, which contains requirements for automatic increases, now requires Arizona employers to pay workers at least $8.05 an hour, compared with the federal minimum of just $7.25.

And that voter-approved law specifically allows counties, cities and town to set their own minimum wages as long as they are at least equal to the state requirement.

Mr. Jordahl is absolutely correct. The “Raise the Minimum Wage for Working Arizonans Act”, Prop. 202 (2006), expressly provides that:

I.  The legislature may by statute raise the minimum wage established under this article, extend coverage, or increase penalties. A COUNTY, CITY OR TOWN MAY BY ORDINANCE REGULATE MINIMUM WAGES AND BENEFITS WITHIN ITS GEOGRAPHIC BOUNDARIES BUT MAY NOT PROVIDE FOR A MINIMUM WAGE LOWER THAN THAT PRESCRIBED IN THIS ARTICLE . . . This article shall be liberally construed in favor of its purposes and shall not limit the authority of the legislature OR ANY OTHER BODY to adopt any law or policy that requires payment of higher or supplemental wages or benefits, or that extends such protections to employers or employees not covered by this article.

What makes that important, Jordahl said, is a 1998 constitutional amendment known as the Voter Protection Act.

It specifically prohibits lawmakers from altering or repealing anything approved by voters without a three-fourths vote of both the House and Senate. And even in that case, the provision allows alterations only when done to further the original purpose of what voters enacted.

The 2013 law, Jordahl said, does neither. So, he wants a judge to void that later-enacted statute, paving the way for locally enacted minimum wages that are even higher.

Flagstaff could be first in line if the court agrees with Jordahl.

Eva Putzova who chairs the Flagstaff Living Wage Coalition, said the details of the plan are still being worked out.

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What the new minimum should be is only one half of the question. She said no decision has been made whether to ask the city council, on which she serves, to enact the increase or instead take it directly to voters.

One procedural problem could get in the way of Jordahl getting the ruling he wants – or any ruling at all.

In general, courts do not like to issue ruling on questions without an actual case. That could result in the lawsuit being thrown out until some city has actually enacted its own living wage, or at least proposed to put the issue on the ballot.

But Jordahl said he intends to argue that the conflict between the two laws gives a court the right to weigh in.

He also said the coalition has already done a great deal of work gearing up for the effort.

“They do not have to spend thousands of dollars obtaining signatures on a local initiative before the courts can act on the question before them,” Jordahl said. “The time for a decision is now.”

The “Raise the Minimum Wage for Working Arizonans Act”, Prop. 202 (2006), is  clear and unambiguous. It is also protected by the Voter Protection Act (1998). Our “Big Brother” Tea-Publican Arizona legislature clearly did not have the power to preempt local governments from adopting a minimum wage higher than Arizona’s statutory minimum wage. The 2013 law is in conflict with Prop. 202 and is invalid with respect to local minimum wage ordinances.

This concern for an actual case and controversy is readily resolved. I would urge Arizona’s more progressive city councils — Phoenix, Tucson, Tempe, and Flagstaff — to  enact a living wage ordinance if that is what takes, and to pool your resources in challenging this unlawful 2013 preemption law together in court.

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