Court of Appeals is skeptical of Tea-Publican legislators’ appeal of Medicaid (AHCCCS) expansion plan


Our Tea-Publican state legislators were in court on Valentine’s day trying to reverse Gov. Jan Brewer’s Medicaid (AHCCCS) expansion plan that benefits over 400,000 Arizonans who now have access to medical care. They are represented by the “Kochtopus” Death Star, the Goldwater Institute.

It does not appear that things went well for our lawless Tea-Publican legislators. The Arizona Capitol Times (subscription required) reports, Court of Appeals hears challenge to Medicaid expansion affecting hundreds of thousands:

With former Gov. Jan Brewer watching over the defense of her legacy, a panel of appeals court judges grilled a lawyer who argued the Medicaid expansion Brewer shepherded into law is unconstitutional.

The Goldwater Institute, a non-profit that advocates for conservative and libertarian causes in the courtroom and Legislature, is challenging the expansion, arguing that a levy imposed on hospitals is a tax increase and required two-thirds approval of the Legislature, which it did not receive.

At stake is Medicaid coverage for up to 400,000 childless adults in Arizona.

Brewer, a GOP governor who pushed the legislation through against the opposition of the majority of Republican lawmakers, attended the oral arguments.

“I don’t regret what I did in regards to this,” Brewer said before the hearing. “It saved lives, it insured more people, it brought money into the state, it kept rural hospitals from being closed down and today there are thousands of people who are very, very grateful.”

Goldwater is representing 36 lawmakers who voted against the 2013 legislation, which finances the state’s share of the Medicaid expansion program with the fee on hospitals. It took effect in January 2014.

The director of the Arizona Healthcare Cost Containment System, or AHCCCS, sets the fee amount.

AHCCCS argued that the levy met an exception to the constitutional provision requiring the two-thirds approval. The super-majority requirement was passed by voters in 1992 as Proposition 108.

Goldwater Institute attorney Christina Sandefur tried to convince a three-judge panel of the Arizona Court of Appeals to overturn a lower-court ruling that found the levy was an assessment not subject to the super-majority vote.

The panel of judges stopped Sandefur in her tracks towards the end of her allotted 20 minutes to sharply question her.

Howard Fischer reports the exchange:

Sandefur acknowledged the Legislature did not set the amount of the levy and that the 2013 law specifically authorized the AHCCCS director to raise money.

But she told the appellate judges that voters adopted the requirement for a two-thirds vote specifically “to put limits on the ability of government to raise revenue.”

“This is very, very broad proposition that the voters passed here,” Sandefur argued. “To just say that the Legislature can hand over that kind of power by a bare majority would completely undermine the purpose of Prop. 108 itself.”

She also acknowledged the constitutional exception from the supermajority margin for assessments imposed by agency directors.

But Sandefur told the judges that even if the levy is an assessment — and even if Betlach gets to decide the amount — it took an act of the Legislature to authorize him to levy it.

Judge Paul McMurdie got nods of agreement from his colleagues as he questioned the logic of Sandefur’s argument that the exception AHCCCS is relying on doesn’t apply.

“You wouldn’t need the exception if they did it by a supermajority,” McMurdie said. “That is the most circular argument I think I’ve ever heard.”

Sandefur said the Legislature is trying to get around Prop. 108 by giving the AHCCCS director the power to set the fees imposed on hospitals.

“This is a very, very broad proposition that the voters passed here,” Sandefur said. “To just say that the Legislature can hand over that kind of power by a bare majority would completely undermine the purpose of Prop. 108 itself.”

Howard Fisher again:

Judge Patricia Norris said if the court buys the Goldwater Institute argument, it makes the exception in Prop. 108 for assessments meaningless.

Norris said there’s another flaw in Sandefur’s argument.

She said taxes are generally defined as being for a general public benefit, and that the plan to get more people covered by Medicaid “has some general public purpose.”

But Norris said this levy is different.

“It’s designed to specifically deal with a problem that the hospitals are facing,” the judge said.

“This is designed to defray the cost of doing business with an indigent population.”

Sandefur did not see it that way.

“The purpose is to take care of Arizona’s poor by providing them with health care,” she told the court. “The ultimate purpose of this is a public purpose.”

That logic did not sway Jones.

“Doesn’t your analysis leave us where everything is a tax?” he asked.

Exactly! That’s what makes this a circular argument that renders the exception in Prop. 108 meaningless.

Monday’s hearing follows a 2015 ruling by Maricopa County Superior Court Judge Douglas Gerlach that levy is an assessment not subject to the supermajority requirement. Whichever side loses here is expected to seek review by the Arizona Supreme Court.

The appellate court did not indicate when it will rule.

Rest assured that the “Kochtopus” Death Star, the Goldwater Institute, will appeal all the way to the Arizona Supreme Court where their former boss, Clint Bolick, is now on the Court. Bolick should be required to recuse himself from this case.


  1. Let’s see … Gov. Jan, a loyal GOP took the extra money from the Feds ( Obama ) thereby including an extra 400,000 persons in #Az that would otherwise be running up huge bills by visiting the emergency rooms at the hospitals, as opposed to visiting their new-found primary care physicians. Assuming the assessment “LEVY” spread over all of the hospitals doing business in the State of Arizona is less than the cost of billing indigents for visiting emergency rooms, rather than their primary care physicians, how is this NOT a legislative win? There are very few legislative wins, these days. The 1992 law that imposes the restriction upon the legislature to perform a 2/3rds majority vote before raising taxes is for General Taxation. Not for the assessment levies meted out by government agencies and via executive orders. If the panel of judges feels the assessment levy is unconstitutional for reasons other than the 1992 law, then the assessment will fail. But, the thread of the 1992 law will not hang the medicare expansion for adults without children, or the fee charged to the hospitals to help defray the administrative costs of such expansions. Sorry! Let me guess … there is a “hospital” cartel in Arizona pushing the Goldwater Institute to spin some legal wheels, and by extension, some beau cou legal cash in an attempt to upset Gov. Jan’s signature apple cart. Why? Because they like bilking and billing indigents? Can’t be for that reason ’cause they can never collect on those bills, anywho. So, why are they attempting to tag the assessment levy as a ‘tax’? Because they feel they will get an Arizona Supreme Court bench to vote in their favor and call the levy so. That would be tragic, for the 400,000 or so families and/or individuals that call the State of Arizona their home who now have traditional healthcare through a primary care physician provided by the expansion, who would otherwise clog the emergency rooms at hospitals with much more egregious ills if not able to manage and maintain their health on more timely basis through their PCP ( primary care physician ). Is there proof that the PCP’s are abusing the system as a result of taking on these patients and thereby timely billing the expanded net for services rendered? Where is the fault in the net result of Gov. Jan’s actions? You know, a lot of GOP governor across the country failed to take the money when Prez O’bama offered it. Gov Jan did, and Arizona is a much better place to live because of that ‘take’. The other states where the GOP governors did not take the dough? They all rank at the bottom for quality of life, and more importantly, life expectancy. Plus, their emergency rooms are overrun with poor people who can’t afford to visit a PCP at least once per year, who then develop chronic health concerns that then place them into the system through the emergency rooms of the hospitals of the states. This is a VERY expensive route to go, and I am sure if you do the math, which Gov Jan obviously did, then the cost of the assessment levy upon the hospitals is much less expensive socially than the treatment of failed indigent persons weeks before their untimely, and quicker than should be … deaths.

  2. “Doesn’t your analysis leave us where everything is a tax?” he asked.

    Exactly! That’s what makes this a circular argument that renders the exception in Prop. 108 meaningless.

    That surely would be a win for the Goldwater Institute. Sure it isn’t their aim?

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