To paraphrase The Bard in Hamlet, “Something is rotten in the state of Denmark Arizona.”

DeathStarThe “Kochtopus” Death Star, the Goldwater Institute, has now achieved something it never could hope to achieve by taking a ballot measure to the people of Arizona to repeal two provisions of the Arizona Constitution prohibiting aid to private and parochial schools, and to approve a school voucher plan. In every state  in which a school voucher plan has appeared on the ballot and was put to a vote, the voters rejected it.


No, the evil bastards at the Goldwater Institute instead decided to bypass the voters and opted for a plan to convince just a majority of a panel of judges to accept their legal legerdemain (slight of hand) that by giving state money to taxpayers who then give the money to private and parochial schools, it’s not really giving state aid to private and parochial schools. (Wink, wink.)

Because this sophisticated scheme to fleece Arizona taxpayers is set up for individuals to access an account — a “pass-through” to the private education corporations that financially benefit — the Arizona Court of Appeals accepted the Goldwater Institute’s legal legerdemain that this somehow is not really a direct taxpayer subsidy, in Niehaus v. Huppenthal, No. 12-042 (Ariz. App. Ct., Div. One Oct. 1, 2013) (.pdf).

The appellate court distinguished Cain v. Horne (Cain II), 220 Ariz. 77,  202 P.3d 1178  (2009), in which Arizona’s Supreme Court struck down the legislature’s previous attempt at a voucher program.  Under that law, state funds were issued by check to a parent who had selected a private school, and the parent was required to restrictively endorse the check to the private school.  Interpreting Cain II, the Neihaus appellate court said the voucher program was struck down “because, essentially, the voucher programs transferred state funds directly from the state treasury to private schools…. In the programs disapproved in Cain II, the state was paying money directly to the institutions; although the payment first went to parents, they then went ineluctably to private schools.”  The appellate court found that the holding in Cain II did not render the ESA program unconstitutional because “unlike in Cain II, in which every dollar of the voucher program was earmarked for private schools, none of the ESA funds are preordained for a particular destination.”

See discussion at Arizona Court of Appeals upholds private school scholarship.

Taking advantage of a Friday news dump, the Arizona Supreme Court yesterday declined to review the Court of Appeals decision. The Arizona Supreme Court has effectively endorsed the Goldwater Institute’s legal legerdemain to effectively render two constitutional provisions null and void Sub Silentio.

The Arizona Supreme Court has made a momentous decision to judicially amend the Arizona Constitution to authorize the privatization of public education — the power to amend the Constitution is a power reserved exclusively to the voters — removing this decision from a vote of the people, and without any opinion explaining or justifying its momentous decision. This is a major scandal.

The Arizona Court of Appeals and the Arizona Supreme Court have effectively rendered two provisions of the Arizona Constitution mere artifacts and Dead Letter Law:

Article 2, Section 12: “No public money or property shall be appropriated for or applied to any religious worship, exercise, or instruction, or to the support of any religious establishment.”

Article 11, Section 7: “No sectarian instruction shall be imparted in any school or state educational institution that may be established under this Constitution, and no religious or political test or qualification shall ever be required as a condition of admission into any public educational institution of the state, as teacher, student, or pupil;”

We have a serious scandal here, folks. For those of you who ignore the “judicial retention” portion of your ballot, it is time for you to start paying attention. It is time to send a message to the Court of Appeals Division 1 (Phoenix), and the Arizona Supreme Court that they will not be retained because of their disregard of the Arizona Constitution and their overreaching judicial activism.