A den of thieves: Arizona’s lawless Tea-Publican legislature

Forget the GOPropagandist opinion and editorial writers at The Arizona Republican. The best editorial opinion I have read so far comes from The Arizona Daily Sun in Flagstaff. The editors are spot on in this editorial. School funding deal masks continuing neglect:

education_appleBefore getting down into the weeds on the state school funding deal, it’s important to look at the bigger picture.

First, the proposed deal includes no tax increase. This is in a state ranked 50th in per-student spending that has just passed corporate tax cuts.

Second, the deal has no long-term, sustainable cash flow to the schools. The hike in state trust land funding, as proposed, expires in a decade, and there is no commitment to renew the Prop. 301 sales tax for education, which raises about $400 million a year for classroom spending and expires in 2021.

And third, even if the deal passes, it will increase state school funding by less than 10 percent when 50 percent is needed just to get Arizona back to its 34th place among the states more than a decade ago.


That said, we can see why state school officials are anxious to take the money now. The legal wrangling over the inflation factor has gone on for five years, with more lawsuits in sight. And the governor is willing to throw in more state trust fund money as part of the package.

So the deal, if passed by the Legislature, means an immediate increase of $250 million to base school funding of about $4 billion a year, plus between $50 million and $75 million a year extra from the trust fund for the next 10 years if voters approve.

Absent a new dedicated sales tax for education, which we continue to endorse, this may be the best that schools in Arizona are likely to get from this governor and legislature. We’d suggest, however, that if the GOP wants to avoid a tax hike in the future, then increasing the 2.5 percent distribution from the land trust baked into the constitution to 5 percent is a reasonable alternative. Over time, more land sales will increase the value of the trust fund, and 2.5 percent seems overly conservative.


A more troubling aspect of the deal is the precedent it sets for abrogating the terms of a voter-approved initiative. Prop. 301 set a state aid formula that called for annual adjustments based on inflation. The state supreme court upheld that clause, and a separate voter initiative prohibits the Legislature from changing the terms without a two-thirds vote. A judge has said the inflation payments now amount to an extra $330 million a year, but legislative leaders balked and paid out only $74 million in this year’s budget. Now the deal includes an inflation payment of $250 million, conditioned on whether state tax revenues and the jobless rate come in at specified levels each year.

Strict legal constructionists can rightly ask who gave those negotiating on behalf of voters the right to settle for less than the courts have ordered? And will the next voter initiative that attempts an end run around the Legislature be subjected to the same drawn-out challenges, with taxpayers footing the legal bill?

The alternative to settling the lawsuit through the Legislature is to continue the legal fight and risk what some see as a constitutional crisis: a judge ordering the Legislature to pay the full amount, even if it means a tax hike or draconian cuts in other programs. Were lawmakers to refuse, who would serve them with contempt of court orders or, ultimately, arrest warrants?


That scenario is a sorry commentary on the brand of politics played by Republicans in Phoenix, but ultimately they are answerable to voters. Is a deal that barely moves the needle on Arizona’s school funding deficit, has no sustainable, long-term mechanism to increase funding and sets a bad legal and political precedent worth it? If voters were paying attention, they would take the money now and replace the dealmakers at the polls in 2016 with lawmakers committed to high-quality public education.

Let the campaign begin.

Right on!

The patrician prevaricator for the plutocracy, George Will’s mini-me at the Arizona Republican, Robert Robb, ran his own public affairs and public relations agency for 13 years. Robb served on the executive committees and boards of directors for the the Phoenix Chamber of Commerce, and the “Kochtopus” Death Star, the Goldwater Institute for Public Policy Research. His column is frequently used to float trial balloons  from these organizations, and their GOPropaganda talking points.

Every once in a while Robb screws up and inadvertently reveals a kernel of truth while he is trying to impugn liberals and Democrats, such as he did today in his political notebook column. Let’s break it down.  Robb: Ed funding settlement is monumental:

The education inflation funding lawsuit settlement enacted by the Legislature this week is being belittled in some quarters on the grounds that it doesn’t come close to providing schools enough money. That’s a fair point, with which I agree.

Nevertheless, the settlement is a monumental achievement for the state. We were quite possibly headed for a constitutional crisis, in which the courts found that schools were owed a sum of money that couldn’t be paid without a tax increase the Legislature would neither enact nor refer.

The “constitutional crisis” Robb refers to is self inflicted by our lawless Tea-Publican legislators who routinely violate the law and the Arizona Constitution (and their oath of office), and then assert that they are above the law — that they ARE the law — and are unaccountable to a coequal branch of government under our constitution, the judiciary. It is a rejection of our democratic form of government. It undermines the rule of law.

No judge has ever asserted the authority to order individual legislators to vote a particular way on a specific piece of legislation. And constitutionally, money cannot be expended from the state treasury without authorization from the Legislature. So, the courts couldn’t just order that the money be paid around the Legislature.

Robb is purposefully confusing two separate issues. The Court can, and has found that our lawless Tea-Publican legislature violated the law and the Arizona Constitution, and directed the trial court to enter a judgment. The trial court entered a money judgment for current year inflation adjustment funding going forward. The court damn well can enforce its orders and judgments, or such orders and judgments are rendered meaningless. It would undermine the rule of law.

What the Court cannot do is compel a particular piece of legislation that the legislature must adopt to remedy its violation of law. That would be a separation of powers issue. However, the Arizona Constitution commands:

Article IX, Section 3: The legislature shall provide by law for an annual tax sufficient, with other sources of revenue, to defray the necessary ordinary expenses of the state for each fiscal year. And for the purpose of paying the state debt, if there be any, the legislature shall provide for levying an annual tax sufficient to pay the annual interest and the principal of such debt within twenty-five years from the final passage of the law creating the debt.

For the legislature to refuse to pay a judgment debt because it ideologically refuses to impose a tax to pay for the judgment debt of the state is yet another constitutional violation, and a breach of their oath of office. This is not a separation of powers issue as Robb implies.

The Arizona Court of Appeals in one case did accept this specious argument for Prop. 204 (Healthy Arizona), i.e., Fogliano v. Arizona (2011), in which the Court of Appeals agreed that Proposition 204 directed the legislature to provide supplemental funding and agreed that it prohibited caps on enrollment, but held that it could not provide plaintiffs’ any relief because notwithstanding the mandatory language in the statute, the matter of funding was a political question and not subject to judicial review. The Arizona Supreme Court denied the Petition for Review, allowing the Court of Appeals decision to stand.

It remains to be seen whether the Arizona Supreme Court, which did rule in favor of the plaintiff school districts in Cave Creek, would then subvert its own ruling by letting the legislature off the hook for the judgment that the Supreme Court instructed the trial court to enter by resorting to the political question doctrine. Fogliano v. Arizona (2011) was wrongly decided by the Court of Appeals and not directly considered by the Arizona Supreme Court, so it is not binding or persuasive precedent on the Arizona Supreme Court.

Just such an impasse over mental health funding lasted decades. [Arnold v. Sarn, filed in 1981 and not settled until 2014, some 33 years later.] In the 1990s, the state Supreme Court got the Legislature to enact a capital financing plan for schools that met its approval by threatening to shut the schools down entirely. [The Arizona Supreme Court ruled that the statutory financing scheme for public education violated the Arizona Constitution, Article XI, § 1, Roosevelt Elem. School Dist. No. 66  v. Bishop (No. CV-93-0168 1994).]

Arizona had a highly activist Supreme Court in those days. I doubt that the current bunch would deploy such a legal nuke.

Actually, the Courts did their constitutional duty back in the day. Robb is documenting that our GOP dominated legislature has for decades acted in a lawless manner. What Robb is actually suggesting is that the conservative activist jurists appointed by Governor Jan Bewer and currently being appointed by Governor Doug Ducey, Ducey gets first appointment to Arizona Supreme Court, will give the Governor and our lawless Tea-Publican legislature a pass on their illegal and unconstitutional acts. I do not presume this to be true at all. But Robb’s assumption that it is should be cause for concern that the independence of the judiciary is threatened and is being corrupted by partisan politics.

Moreover, ultimately schools still didn’t get the money. The Legislature hasn’t funded that capital financing plan for several years now.

This is true, but Robb is admitting to a violation of a settlement agreement by our lawless Tea-Publican legislature. Moreover, he fails to tell you what the  Arizona Capitol Times (subscription required) reported earlier this year, Lawsuit will seek funding for school maintenance:

A public interest advocacy group is planning a lawsuit alleging that the state has unconstitutionally underfunded building maintenance and soft capital for school districts, which could force the state restore hundreds of millions of dollars of budget cuts made in recent years.

The Arizona Center for Law in the Public Interest plans to sue on behalf of several school districts and taxpayers, said attorney Tim Hogan. The Glendale Elementary School District’s governing board in December voted to join the lawsuit as a plaintiff, and Hogan said he plans to bring in several other school districts, along with property taxpayers from districts that have approved bonds to make up for funding shortfalls.

“It will allege that the current system is unconstitutional because it doesn’t provide any dedicated capital funding to school districts sufficient to ensure that they meet the state’s minimum standards,” Hogan said of the lawsuit. “School buildings have to be renovated. They have to be repaired. They have to be maintained. And all of that requires significant dollars.”

Hogan said he could file the suit within the next month.

I have not seen any further reporting on this pending lawsuit, so it may not have been filed. Our lawless Arizona legislature faces another lawsuit for its failure to fund public education.

In the 1990s, the Legislature accepted the court’s authority and, after some fits and starts, complied. This Legislature might very well reject the court’s authority. Impeachment and recall proceedings aren’t out of the realm of political imagining, going in all sorts of directions.

As I said earlier, our lawless Tea-Publican legislators routinely violate the law and the Arizona Constitution (and their oath of office), and then assert that they are above the law — that they ARE the law — and are unaccountable to a coequal branch of government under our constitution, the judiciary. It is a rejection of our democratic form of government. It undermines the rule of law.

Robb’s suggestion of impeachment and recall for the actions of our lawless Tea-Publican legislators and governor is a stunning admission of their lawlessness and unfitness to hold political office. But as always, the response of this GOP apologist is “Meh, what are going to do?

To put it mildly, that wouldn’t have been good for the state. Getting schools some meaningful money while averting such a constitutional crisis is a very big deal.

The “constitutional crisis” is a lawless legislature that Arizonans have a moral obligation to remove from office. Such lawlessness is never to be condoned or permitted in public office. The editors of The Arizona Daily Sun are correct, “replace the dealmakers at the polls in 2016 with lawmakers committed to high-quality public education.”

Let the campaign begin.

6 thoughts on “A den of thieves: Arizona’s lawless Tea-Publican legislature”

  1. I bet close to 75% of the local Phoenix area (Valley) voters have little knowledge of this ongoing educational mess here in Arizona? How can we expect our next generation to compete for better jobs and succeed when our current educational funding is so far beyond what’s critically necessary? Where does Gov. Ducey expect to be in 5 years? Very short sighted leadership as was as in our Legislator. Cutting corners here will clearly mean losing more top teachers, mediocre student performance and eventually students not prepared for college or to enter the work force!

  2. The lack of education is causing a loss of all kinds of educated people from the state … Doctors, nurses, teachers, scientists, anyone who wants to raise their kids decently.

  3. Excellent and required reading for everyone that has children in public schools, or cares about the rule of law, the will of the voters and responsibility. I will bookmark this and share it widely. Thank you.

    • Cheri,
      It’s probably a smart political move to mention, “…everyone that has children in public schools…” but I think we make a mistake in not pointing out that even those of us who do not have children in school have a major stake in our schools. I don’t want to live in a society that consists of poorly educated people and I doubt my childless friends do either! It’s a mistake to not rally everyone to the defense of public education.


      • I appreciate that, Bill which is why I added the rest of the sentence. I no longer have children in school, but I know the value of a great public education for everyone . I’m pretty sure that you may have misunderstood the point I was trying to make…and I would agree with your comment!

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