AZ Court of Appeals revives GOP legislators’ challenge to Gov. Brewer’s Medicaid (AHCCCS) expansion


Cartoon_08The real “Obamacare death panel” — 36 Arizona Tea-Publican legislators and their lawyers at the “Kochtopus” Death Star, The Goldwater Institute — in their quest to overturn Governor Jan Brewer’s Medicaid (AHCCCS) expansion plan to deny health care to tens of thousands of Arizonans who now have access to health care, were thrown a lifeline today by a panel of the Arizona Court of Appeals.

The Arizona Capitol Times (subscription required) reports Dealing blow to Brewer, appeals court says Medicaid expansion lawsuit can move forward:

The Arizona Court of Appeals ruled today that a group of Republican lawmakers has standing to challenge the hospital assessment that funds Gov. Jan Brewer’s Medicaid expansion program.

The decision gives opponents the opportunity to argue that the law was unconstitutional because it didn’t garner a two-thirds vote in the Legislature.

The case now threatens what is arguably Brewer’s greatest achievement as governor. The assessment on hospitals, which pays for the state’s share of Medicaid expansion, is the lynchpin of the Brewer’s plan.

Proposition 108, a constitutional amendment approved by voters in 1992, requires a two-thirds vote of the Legislature to approve a tax increase. Opponents of Brewer’s Medicaid plan, which passed with the support of legislative Democrats and a minority of Republicans, argued that the law violated Prop. 108 because it passed with only a simple majority.

The judges did not rule on the merits of the case, which will go back to Maricopa County Superior Court. At issue is whether it was legal to impose an assessment, which opponents say is a tax, on hospitals in order to fund the expansion of coverage under the Arizona Health Care Cost Containment System.

The appellate court overturned a trial court ruling that the 36 Republican lawmakers, all of whom voted against Medicaid expansion, did not have standing to sue over the program. Maricopa County Superior Court Judge Katherine Cooper sided with Brewer’s attorneys, who argued that it was up to the Legislature to determine whether Medicaid expansion required a two-thirds vote under Prop. 108.

Brewer’s attorneys also successfully argued to the trial court that the lawmakers did not have standing because they did not have to actually pay the alleged tax themselves.

Judge John Gemmill, writing for the three-judge panel, wrote that it is appropriate to grant standing to the lawmakers because the lawsuit involves “pure legal issues of sufficient urgency and statement importance.”

“The issues presented in this litigation have potentially important ramifications for Arizona’s state budget and may impact a portion of Arizona citizens who rely on Medicaid and the state agencies that operate it,” Gemmill wrote.

The judges rejected Brewer’s argument that the Legislature itself had sole power to determine whether a bill needed a two-thirds supermajority under Prop. 108. Gemmill said the Legislature could not make that determination any more than it could decide to raise the state’s income tax with a simple majority.

The court acknowledged that lawmakers do not generally have standing to sue over their votes in the Legislature. But Gemmill wrote that a landmark 2003 Arizona Supreme Court ruling, as well as a U.S. Supreme Court ruling in a Kansas case, support the Arizona lawmakers’ right to sue.

Gemmill said the Arizona Republicans are suing not over a loss of political power but over the potentially unconstitutional “overriding” of their votes. If the hospital assessment required a two-thirds vote, then the 36 GOP lawmakers’ votes would have been enough to defeat it.

“Legislators, like private citizens, have a constitutional right to have their votes count a certain amount, and if a vote is properly alleged to have counted less than the constitutionally required amount, standing exists to claim a constitutional injury,” Gemmill wrote.

The judge is referring to the very same Arizona legislators who sought to suppress the votes of Arizona voters with HB 2305, the GOP Voter Suppression Act. Oh, the irony. Pity the poor legislators.

DeathStarGoldwater Institute attorney Christina Sandefur, who represented the anti-Medicaid expansion lawmakers, said called the ruling a victory not just for the legislators but for the state and its taxpayers as well. The ruling was just one step, but it’s an important one, she said, and Sandefur was confident that the courts would ultimately rule in the institute’s favor.

“It preserves the integrity of the legislative process. And what we saw happening in the Legislature in the Medicaid decision is only one instance of what could be a very abusive process in the future if this were not able to be challenged in court,” Sandefur said. “If that were the last word, that would basically mean that no tax ever in the future be challenged for violating the constitution and the Legislature, whenever it decided not to comply with the constitution, could do so.”

Once gain the Goldwater Institute reveals that this case is not about Medicaid expansion per se, but rather preserving the Goldwater Institute’s anti-democratic Prop. 108 (1992), which requires a two-thirds vote of each chamber of the legislature to increase or enact any new tax, or to reduce or eliminate any tax exemption or credit. It is the principal source of Arizona’s dysfunctional tax system and its structural revenue deficit.

Brewer called the ruling “wrong and problematic,” and said she would appeal it to the Arizona Supreme Court. She emphasized that the Court of Appeals did not rule on the merits of the case.

“If we have to return to the trial court to litigate the hospital assessment, we’re confident in its legality and we will comprehensively litigate it,” Brewer told the Arizona Capitol Times in an emailed statement.

Brewer also warned that the consequences would be dire if the courts ultimately threw out her Medicaid expansion plan.

“Arizonans should be concerned if the courts prevent the implementation of my Medicaid Restoration Plan because that would jeopardize the state’s ability to restore critical, cost-effective health care to tens of thousands through AHCCCS. Further, it would do so against the will of voters who twice voted to provide a health care safety net for our most vulnerable citizens,” she said.

I have advocated for the repeal of the anti-democratic Prop. 108 (1992) for years. It empowers a tyranny of a minority of anti-tax zealots, and is contrary to the basic principle of democratic governance for routine legislative matters: a simple majority vote.

The voters of this state need to make a commitment now to repealing Prop. 108 in 2016. It is the best way to destroy the “Kochtopus” Death Star and to end its Evil Empire in Arizona.


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AZ BlueMeanie
The Blue Meanie is an Arizona citizen who wishes, for professional reasons, to remain anonymous when blogging about politics. Armed with a deep knowledge of the law, politics and public policy, as well as pen filled with all the colors stolen from Pepperland, the Blue Meanie’s mission is to pursue and prosecute the hypocrites, liars, and fools of politics and the media – which, in practical terms, is nearly all of them. Don’t even try to unmask him or he’ll seal you in a music-proof bubble and rendition you to Pepperland for a good face-stomping. Read blog posts by the infamous and prolific AZ Blue Meanie here.


  1. So, an assessment that the hospitals are begging to pay is a tax yet all of those fees the legislature has imposed without a 3/4ths majority are not a tax?

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