AG ‘Nunchucks’ Tells AZ Supreme Court Our Lawless Legislature Is Free To Do As it Pleases

Our partisan hack Attorney General, Mark Brnovich, is a rank embarrassment to the state of Arizona. Now that he is running for U.S. Senate (seriously, Dude?) he has become even more embarrassing as he panders hard to the MAGA/QAnon cult of Donald Trump, who want to punish him for certifying Arizona’s election results and for not joining the Republican Attorneys General Association’s bogus lawsuit brought by Texas AG Ken Paxton to overturn the 2020 election, which was rejected by the U.S. Supreme Court.

Does this look like a mentally stable individual to you? Dear God.

You want the nunchucks.

You got the nunchucks. pic.twitter.com/fu4MlJEUN1

— Mark Brnovich (@GeneralBrnovich) October 15, 2021

Now Attorney General “nunchucks” (or is it numbnuts?) is actually arguing to the court that our lawless authoritarian Arizona GQP-controlled legislature is free to do as it pleases, that the court has no role in enforcing constitutional requirements that our lawless authoritarian Arizona GQP-controlled legislature has been ignoring for years.

The Arizona Capitol Times reports, Brnovich says mask mandate ban not court’s business:

Attorney General Mark Brnovich is making a last-ditch effort to tell Arizona courts they need to butt out of how the legislature conducts its business.

In legal briefs filed with the state Supreme Court, Brnovich contends that the question of whether a ban on schools adopting mask mandates belongs in budget legislation is strictly a “political question” beyond the reach of judges. Ditto, he said, of other provisions put into budget bills, ranging from whether universities can require employees and students to be vaccinated to how subjects like race, ethnicity, and gender can be taught in public schools.

In a case that Attorney General “Nunchucks” argued, State v. Maestas (2018) [pertaining to The Arizona Medical Marijuana Act (“AMMA”), enacted by voters as Proposition 203 in 2010], the Supreme Court rejected his political question doctrine argument:

Flowing from “the basic principle of separation of powers,” a non-justiciable political question is presented when “there is a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it.” Kromko v. Ariz. Bd. of Regents, 216 Ariz. 190, 192 ¶¶ 11– 12 (2007) (internal quotation marks omitted) (quoting Nixon v. United States, 506 U.S. 224, 228 (1993)); see also Forty-Seventh Legislature v. Napolitano, 213 Ariz. 482, 485 ¶ 7 (2006) (defining “[p]olitical questions” as “decisions that the constitution commits to one of the political branches of government and raise issues not susceptible to judicial resolution according to discoverable and manageable standards”). Neither aspect of this test is present here.

And if Brnovich can’t convince the justices, he has an alternate proposal: Let the controversial — and possibly illegal — provisions take effect this year, with a warning to lawmakers never to do that again.

“And the legislature will adjust its practices accordingly,” he said. Brnovich said this would save not just all 58 provisions of the four challenged “budget reconciliation bills” adopted this session but ensure that similar measures from prior years that used the same procedure do not themselves face a legal challenge. [Not a serious concern with the statute of limitations.]

WTF? Where did this asshat get his law degree, Trump University? He is actually arguing that the legislature gets a free pass, and “pinky swear, we promise not to do it again“? (Yes, they will).

Anyway, he said, applying the ruling prospectively will accomplish one of the stated objections to the practice: Legislative leaders would forever be on notice they can no longer engage in “logrolling,” putting various popular and unpopular provisions into a single take-it-or-leave-it measure.

Hanging in the balance is a ruling last month by Maricopa County Superior Court Judge Katherine Cooper voiding a host of provisions in laws approved by the legislature and signed by Gov. Doug Ducey in the waning days of the session. They all were supposed to take effect on Sept. 29.

Aside from the language on masks and teaching what lawmakers call “critical race theory,” other would-be changes that Cooper rejected include barring cities from telling businesses they have to require customers to wear masks, stripping Secretary of State Katie Hobbs of her powers to defend state election laws, and allowing the attorney general to prosecute individuals who plan activities that impede a public school from operating. That last provision is seen as going after teachers who had organized a sick-out to protest the lack of masking requirements.

Cooper, ruling on a challenge brought by education groups and their allies, did not find that any of these provisions, by themselves, is illegal.

What is, she said, was piling them into just four separate so-called budget reconciliation bills, each with what she said are broad, generic titles that fail to inform voters of the changes they enact.

And Cooper said there are separate constitutional requirements that legislation deal with only a single subject.

“Together these requirements promote transparency and the public’s access to information about legislative action,” she wrote.

Brnovich said none of that is her business — or the business of any judge, calling it an “unreviewable political question.”

Did this asshat miss his ConLaw class at Trump University the day that Marbury v. Madison and judicial review were discussed? It is precisely the role of the judiciary to determine whether the constitution has been complied with by the other two branches of government.

“Plaintiffs would have the courts, for the first time, superintend the state budget process by determining after the fact whether provisions contained in budget reconciliation bills are necessary to implement the budget,” his legal filing with the Supreme Court said.

Brnovich said that, in deciding how to spend money, lawmakers frequently tie that to substantive changes in law. And that power, he contends, is broad.

The budget process has routinely been abused by authoritarian Republicans.

“There is no requirement that ties between funding and substantive rules be directly referenced in the law, and certainly no requirement that each budget reconciliation bill provision be linked to a line item in the budget,” he said. “Setting the budget and deciding what is necessary to implement it are uniquely legislative functions,’ which Brnovich said “are the exclusive prerogative of the legislature.’

But Cooper, in her ruling, said all she was doing is enforcing what already is in the Arizona Constitution, where the requirements for bills to have a title and deal with a single subject are located.

“The issue here is not what the legislature decided but how it decided what it did,” she wrote. “Whether the legislature complied with the requirements of (the Arizona Constitution) and whether a provision is reasonably related to ‘budget reconciliation’ are questions properly before the court.”

And in this case, Cooper made clear that each of the four measures was required to have a title “that it puts people on notice as to the contents of the bill.”

“It should enable legislators and the public upon reading the title to know what to expect in the body of the act so that no one would be surprised as to the subjects dealt with by the act,” she said.

These, she said, did not.

For example, she cited the provision prohibiting schools from requiring students and staff to wear masks while on campus. It was enacted not as separate legislation but instead tucked into what was labeled “budget reconciliation for kindergarten through grade 12.” Ditto language forbidding schools from requiring proof of vaccines.

Also in that same bill, she noted, was the restrictions on what can be in public school curriculum — the so-called ban on teaching critical race theory — as well as authorizing lawsuits against public employees for what she called “vaguely defined conduct related to public schools.”

“What do these measures have to do with the budget?” Cooper asked.

Brnovich, however, said no one is being fooled or misled. He said that, after years of using this procedure, people should be aware that the title “budget reconciliation” means it could contain any number of things.

So because authoritarian Republicans have routinely been abusing the budget process for years, it is now normalized even though it violates the Arizona Constitution? Does routine criminality also normalize what is a violation of criminal law, nullifying those laws as well? (Definitely a Trump University law education).

“(It) should put legislators and the public on notice that the bill’s contents could be broad,” he said, though limited to the general topic like K-12, higher education, health, or budget procedures.
“A title need not be a synopsis or complete index of an act, and any provision directly or indirectly related to the subject is proper,” Brnovich argued. “Applying that test, the challenged provisions of all the bills are valid.”

Cooper, in her ruling, also addressed the idea that any relief should be prospective only. The judge said nothing in her ruling should come as a surprise to lawmakers.

“The Arizona Supreme Court has made it clear that logrolling is unlawful,” she wrote, citing a 2003 ruling in a fight between the legislature and then-Gov. Janet Napolitano. And as recently as 2018, Cooper said, the justices said the whole purpose of a single subject rule is to prevent lawmakers from “combining different measures into one bill so that a legislature must approve a disfavored proposition to secure passage of a favored proposition.”

The justices are set to hear the case on Nov. 2.

This is the rarest of rare moments: I actually agree with something that resident GQP apologist at The Arizona Republic, Robert Robb, had to say. Judge didn’t go rogue in budget ruling — Brnovich, Ducey did in their reaction:

As someone who has brayed for years about the Legislature violating the state Constitution’s single-subject provisions with its Budget Reconciliation Bills, the response by Attorney General Mark Brnovich and Gov. Doug Ducey to a court decision so finding was more irritating than the usual politicians’ blather.

Brnovich has posted a few tweets incorporating the theme of this one: “We will appeal this ruling. It’s unfortunate that left-wing groups want to undermine the legislative process and indoctrinate our children with critical race theory and force vaccines on those who don’t want them.”

What Brnovich is really arguing

This is a grossly misleading description of what the court case is about – irresponsibly so for any attorney and particularly for the state’s attorney general.

Brnovich is trying to create the impression that he is going to court on the policy issues of whether the state should ban mask and vaccine mandates and the teaching of critical race theory. But that’s not the legal issue before the courts.

As Judge Katherine Cooper made clear in her ruling: “The issue here is not what the Legislature decided but how it decided what it did.”

Here is the actual legal proposition Brnovich is advancing in court: The state constitutional provisions limiting acts of the Legislature to a single subject with a title properly expressing it are a nullity. That’s because the Legislature gets to decide what constitutes a single subject and a proper title, and it can make them anything it wants. And judges have nothing to say about it.

Ducey’s Trumpian attack on the judge

If anything, the statement put out by Ducey’s spokesman, C.J. Karamargin, was worse. Presumably he was conveying the views of the governor and the statement was vetted by the governor’s lawyers, as distressing as that assumption may be. The heart of the statement was this: “Unfortunately, today’s decision is the result of a rogue judge interfering with the authority and processes of another branch of government.”

That “rogue judge” thing is shamefully Trumpian. And utterly false and unfair.

Cooper’s decision is a workmanlike disposition of the specific complaint before her and applying the precedents that bind her.

Both Brnovich and Ducey are taking the position that it is not the role of judges to enforce constitutional limits and requirements on the other two branches of government. That’s a perversion of the separation of powers doctrine. One of the fundamental roles of the judicial branch is to enforce constitutional norms and limits on the other two branches of government.

A failure to respect the role of judiciary

Moreover, a judiciary that that does so robustly is a fundamental plank of libertarian conservatism, properly understood.

Ducey appointed a justice to the Arizona Supreme Court, Clint Bolick, who wrote a book making precisely that case, David’s Hammer.

In his recent magnum opus, The Conservative Sensibility, George Will stresses the vital importance of the judiciary playing such a role in conservative governance. In so doing, he relies extensively on the work of Timothy Sandefur, a litigator and scholar with the Phoenix-based Goldwater Institute.

The Arizona Supreme Court has agreed to take direct appeal of Cooper’s decision. Some believe that, because Ducey has supposedly packed the high court, the fix is in and Cooper’s decision is likely to be overruled.

[H]owever, Brnovich and Ducey’s core assertion – that whether legislative enactments comport with the procedural and substantive requirements of the state Constitution is no business of judges – will undoubtedly be summarily dismissed, with what amounts to judicial raspberries.

The high court took up a multiple-subject challenge to a legislative enactment as recently as 2018, Hoffman v. Reagan. Five of the seven current justices participated, including three Ducey appointees. After a careful analysis, the court concluded that there was no violation.

But nary a one of them wrote a concurring opinion saying: You know what, whether what the Legislature enacts is one or multiple subjects is up to the Legislature to decide. Ain’t none of our business.

It’s not the judge that’s gone rogue in this case.