Analysis of the opinion on Prop. 204 and AHCCCS

Posted by AzBlueMeanie:

Maricopa County Superior Court Judge Mark H. Brain ruled in favor of the state in the lawsuit over whether state lawmakers are obligated to fund the state's AHCCCS program to provide health care to low-income Arizonans under Proposition 204, i.e., Healthy Arizona.

You can read the opinion here (h/t Tucson Weekly). http://www.tucsonweekly.com/images/blogimages/2011/08/10/1313016660-ruling_8-10-11.pdf

The opinion is a fine piece of writing, but flawed legal analysis. The Judge actually begins with a paraphrase of a quotation from Senator Hubert H. Humphrey (D-MN) that I often quote:

It was once said that the moral test of government is how that government treats those who are in the dawn of life, the children; those who are in the twilight of life, the elderly; and those who are in the shadows of life, the sick, the needy and the handicapped.

Proposition 204 funded Healthy Arizona from the Tobacco Litigation settlement fund and, in addition, provided that these funds "shall be supplemented, as necessary, by any other available sources including legislative appropriations  and federal monies." A.R.S. Sec. 36-2901.01(B). The Arizona legislature has always supplemented any shortfall in the Tobacco Litigation funding, until 2010.

Governor Jan Brewer and her Tea-Publican legislature passed legislation to remove childless adults from AHCCCS coverage and cap enrollment in AHCCCS. The AHCCCS budget was cut to "balance" the state budget on the backs of the poor. This particular program was an expanded federal Medicaid program that the state had voluntarily participated in. Health and Human Services gave the federal government's OK for the state to withdraw from the voluntary expanded program (losing millions in supplemental federal funding as a result).

The requirements of Proposition 204 are not satisfied however, which expressly provides that the legislature "may change the eligibility threshold [to be] even more inclusive," but may not "establish a cap on the number of eligible persons who may enroll in the system." A.R.S. Sec. 36-2901.01(A).

Judge Brain begins his analysis with the observation that "[T]he legislature commands the power of the purse." This undoubtedly is true, however, in Arizona the people are a "super legislature" and their acts through citizens referendums and initiatives supersede and are superior to routine acts of the legislature. Judge Brain nowhere discusses this in his analysis.

Judge Brain notes that there are exceptions to the legislature's "power of the purse," i.e., "one such exception is for appropriations that are self-executing." "The test for determining whether a self executing appropriation exists is whether the people have expressed an intention for money to be paid for such a purpose in the Constitution itself." "Another obvious exception is that the people themselves, through the initiative process, can appropriate funds." He correctly notes that "Indeed they did so here – Proposition 204 effectively allocates the Tobacco Litigation Fund to health care."

Judge Brain detours into a discussion of Proposition 101 (2004), which requires initiatives to identify a funding source of revenue. The Judge concedes that Proposition 204, enacted years earlier, is not subject to Proposition 101, but he somehow believes it is still relevant. He is wrong. Proposition 101 has no force or effect in this analysis.

Judge Brain next discusses the application of Proposition 105 (1998), the Voter Protection Act. The VPA precludes the governor and the legislature from repealing or amending a citizens referendum or initiative. Any amendment must "further the purpose" of the referendum or initiative, and requires a three-fourths super-majority vote of both chambers of the legislature.

In the instant case, the budget cuts to AHCCCS were in direct contravention of Proposition 204 and thus did not further the purpose of the measure. Nor were these budget cuts enacted by a three-fourths super-majority vote of both chambers of the legislature.

Judge Brain finds that the Voter Protection Act must be read in conjunction with Article 9, Section 5 of the Arizona Constitution, which provides, in part, "No money shall be paid out of the state treasury, except in the manner required by law." The Judge concludes that "Although the Voter Protection Act prohibits the Legislature from doing numerous things, it does not require the Legislature to do anything – specifically, it does not require the legislature to fund programs, nor does it purport to amend Article 9, Section 5."

Judge Brain goes on to explain that:

Proposition 204's statutory requirement that the funding "shall be supplemented, as necessary, by any other available sources including legislative appropriations and federal monies." A.R.S. Sec. 36-2901.01(B), merely contemplates that the Legislature will pass legislation to fund the program. This is not a self-executing provision: Proposition 204 enacted statutes, but did not amend the Constitution, and the Voter Protection Act does not impose an enforceable duty on the Legislature to fund Proposition 204. Simply put, the Court lacks the authority to make the Legislature fund Proposition 204.

Let's unpack his analysis. The Judge is correct in asserting that all pertinent constitutional provisions must be read in conjunction with one another. So it is surprising that Judge Brain somehow managed to overlook Article 9, Sec. 3, which provides, in pertinent part:

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. (emphasis added).

The Voter Protection Act did not require the Legislature to fund programs because Article 9, Sec. 3 of the Arizona Constitution already does so. The state has a constitutional obligation to levy taxes sufficient to meet its obligations, e.g., the supplemental funding of Proposition 204 when the Tobacco Litigation Fund is insufficient. Judge Brain's statutory vs. constitutional dichotomy falls apart when Article 9, Sec. 3 of the Arizona Constitution is read in conjunction with other provisions of law. Judge Brain nowhere discusses this provision in his analysis.

Unfortunately, Judge Brain is correct when he says Proposition 204 is not self-executing. The Legislature was always presumed to perform its constitutional duty and to do what is necessary to fund the program. it was never anticipated that we would have the lawless Legislature that we have today which brazenly ignores the Arizona Constitution and the rule of law. This lawless Legislature says to the courts "we ARE the law" (above the law).

Judge Brain alludes to the "political question" doctrine which the courts routinely cite in matters involving the separation of powers and comity between the branches of government. The courts cannot compel the Legislature to act in a legislative manner that the Arizona Constitution requires the Legislature to act. For example, the courts cannot compel the Legislature to levy new taxes to supplement the AHCCCS program under Article 9, Sec. 3 of the Arizona Constitution. The Legislature can violate its constitutional obligation and simply say to the courts "you can't make me! Phhhht!"

So the solution to this problem will not be a legal one, but a political one.

The Tea-Publican Legislature's pledge to Grover Norquist never to raise taxes under any circumstances is in direct contravention of Article 9, Sec. 3 of the Arizona Constitution. The Tea-Publican Legislature is in violation of its duty under the Arizona Constitution and in violation of its oath of office. We have a lawless Legislature and governor who brazenly ignore the Arizona Constitution and the rule of law. This tyrannical regime needs to be removed from office by the voters of Arizona.