AZ Supreme Court Hears Ridiculous Argument For GQP Lawlessness On State Budget (Updated)

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

The Arizona Supreme Court heard oral argument today on this ridiculous argument.

The Arizona Capitol Times reports, Supreme Court to hear oral arguments on mask mandate ban:

State lawmakers are not conceding they acted illegally in the way they approved a ban on mask mandates at schools earlier this year as part of the budget.

But they are telling the Arizona Supreme Court that if they did break the law, the justices should let them get away with it one more time and let the state block those mask requirements.

Well, actually, several more times.

They also want to be able to enforce not just the ban on schools requiring face coverings of faculty and students but also a grab-bag of other items stuffed into what lawmakers call “budget reconciliation bills.” These include whether universities can mandate vaccines, strip Secretary of State Katie Hobbs of some of her powers, create a committee to study the election audit, and even tell schools how they can — and cannot — teach about race, gender and ethnicity.

And on Tuesday the state’s high court will hear their arguments.

Attorney General [“Nunchucks”], Mark Brnovich, who is defending GQP lawmakers, wants the justices to overturn a ruling by Maricopa County Superior Court Judge Katherine Cooper that lumping those provisions — and many more — into these catch-all bills violates state constitutional requirements that what’s in each bill be reflected in the title and that measures be limited to a single subject. Among his contentions is that what meets that definition is strictly a legislative matter, not subject to judicial review.

But perhaps unconvinced that argument is going to fly, the attorney general is telling the justices, in essence, that no one ever told lawmakers they couldn’t approve disparate issues that way. So he wants them to let these provisions take effect with an admonition not to do it again.

He’s not alone.

In a separate legal brief, House Speaker Rusty Bowers, Senate President Karen Fann and Gov. Doug Ducey tell the justices that if they conclude they broke the law they should let this budget pass, let all the disparate provisions take effect, and tell them what they need to do — in the future — to comply.

Bullshit! You all knew what the law required, and you willfully ignored it out of the arrogance of authoritarian abuse of power.

“The legislature stands ready to implement diligently the judiciary’s constructions” of what the Arizona Constitution means, wrote attorney Thomas Basile. “But it is entitled to fair notice of, and an opportunity to institute,such new doctrinal developments.”

It is not “new.” it has been law for over a century. There is also prior court precedent. It has been willfully ignored for many years by our authoritarian GQP-controlled legislature.

That presumes, however, the justices believe that lawmakers didn’t know — and shouldn’t be expected to know — what the framers of the Arizona Constitution meant when they spelled out in 1912 that every legislative act “shall embrace but one subject” and that subject “shall be expressed in the title.”

But Roopali Desai, representing education groups and their allies who sued — and convinced Cooper to rule in their favor — pointed out to the justices that the Supreme Court has, in fact, weighed in on this issue before.

That was in a 2003 legal fight where state lawmakers sued then-Gov. Janet Napolitano about her decision to veto several provisions out of three of what were called at the time “omnibus reconciliation bills.”

In that case, the court sidestepped the question of whether the governor’s power extends to the ability to reject spending reductions. The justices said, among other things, the dispute is political.

But Chief Justice Charles Jones, writing for the unanimous court, said he and his colleagues essentially were being put in a position of trying to determine if a governor is constitutionally authorized to veto provisions of one of these omnibus bills when it appears that the legislature itself wasn’t obeying the rules.

“The problem arises because the relevant ORBs address multiple subjects,” he wrote.

“Had the legislature addressed these subjects in separate bills, there would be no need to determine whether they were or were not appropriations,” Jones continued. “Thus, the problem we face is in part created by the apparent non-adherence to the single subject rule in the legislative process.”

More to the point, he said that having the court weigh in on whether Napolitano misused her veto power “would of necessity require that we simultaneously validate legislation which appears to conflict with the single subject rule.” And Jones said there were “numerous apparent violations of the single subject rule in the ORBs.”

Basile, however, said lawmakers did take that 2003 ruling seriously and did change their procedures.
Prior to 2004, he said, all those miscellaneous odds and ends were put into just three ORBs, the practice that the justices found legally wanting.

But since then, Basile said, they have broken them down into smaller chunks.

In fact, he said, this year there were eight “budget reconciliation bills,” each with “distinct subject areas” like environment, health, K-12 education and criminal justice. He said going from three to eight “complies with the single subject rule, while still accommodating the practical demands of governing a large, diverse and continually growing state.”

Not good enough, countered Desai.

She said what lawmakers essentially want is for the justices to conclude that simply breaking these into smaller pieces, by itself, complies with what the Arizona Constitution demands.

Desai said they actually first have to look in to what’s actually in each of the bills. And once they do, she contends, they will conclude that, whether it’s three bills or eight, the legislature still is not following what the constitution demands.

Note: The hearing was this morning. I was not available to listen to the arguments. I will update when there is reporting available.

UPDATE: The Arizona Mirror reports:

Less than two hours after it heard oral arguments in the case on Tuesday [this tells me they had a  working draft before oral argument], the justices unanimously upheld a trial court ruling that several budget bills violated a section of the Arizona Constitution known as the “single-subject rule.” That rule mandates that legislation embrace “one general subject” and that the subject be clear in the title of the bill.

Gov. Doug Ducey’s court packing scheme did not pay off for him, this time.

A group of Democratic elected officials, liberal advocacy groups and citizens filed a lawsuit after Republican lawmakers and Gov. Doug Ducey enacted a budget for the 2022 fiscal year that included numerous changes to the law that they violated the single-subject rule.

Those provisions barred school districts and charter schools from imposing face mask requirements to curb the spread of COVID-19, prohibited the teaching of “critical race theory” in K-12 schools, barred colleges and universities from requiring COVID vaccines or testing of students, and prohibited cities and counties from requiring people to show “vaccine passports.”

The ruling also blocks several new laws unrelated to COVID or the ongoing pandemic. The budget bills would have established rules for anti-fraud countermeasures in ballots for counties that choose to use them, stripped Democratic Secretary of State Katie Hobbs of the authority to defend election laws in court, and enacted other so-called “election integrity” measures.

Maricopa County Superior Court Judge Katherine Cooper ruled in September that the COVID-related measures and the critical race theory ban violated the provision of the single-subject rule that prohibits misleading titles. That part of her ruling affected only those individual laws. The election-related provisions were part of the “budget procedures” BRB, which Cooper struck down in its entirety as a violation of the single-subject rule.

The Supreme Court will issue a full opinion at a later date.

The Court’s opinion will almost certainly change the practice, which has become increasingly common over the course of nearly 20 years, of packing budget bills full of a wide range of disparate policy changes. Exactly how far the court goes in restricting what the legislature can include in the budget remains to be seen.

The entire budget process should be revised. The Legislature should return to “regular order,” where the appropriations committees hold public hearings on each specific measure to allow for public testimony, and take a public vote, and then the full chamber vote on each measure. This would restore public participation and transparency. No more of this crap where the governor and GQP legislative leaders shut out the Democrats in the legislature and the public, and only negotiate with the Arizona Chamber of Commerce and Industry and other Republican-leaning business groups secretly in the shadows, and then spring a massive budget bill on the legislature shorty before sine die using members’ pet bills stuffed into the budget reconciliation bills, commonly called BRBs, as leverage to ram the budget through the GQP-controlled legislature.

The purpose of the single-subject rule is to prevent logrolling, a term to describe the practice of tying unrelated measures to force lawmakers to vote for something they oppose in order to pass something they support.”Various provisions of the budget, including some that were struck down, were included to win the support of holdout legislators.

Some GOP lawmakers said they wouldn’t vote for the budget unless it included the ban on face mask mandates in schools, for example. Several of the provisions were originally stand-alone bills that failed to win support.

The quickest way to fix this authoritarian GQP abuse of power is to elect a Democratic governor, and a Democratic-controlled legislature (for the first time since 1966). This would break the authoritarian GQP’s sense of entitlement and confidence they will never be held accountable for their lawlessness. A Democratic legislature can restore “regular order” to the budget process. This should be  campaign issue in next year’s election.