Fact Checking Rep. John Kavanagh aka ‘Troll Boy’ On Prop. 208 Lawsuit

Above: Internet troll Rep. John Kavanagh aka “Troll Boy” in his natural state.

Update to Ducey Packed AZ Supreme Court Temporarily Upholds Prop. 208, With A Roadmap To Gutting It.

Troll Boy trolled this blog with a comment the other day that merits a detailed response to his rank dishonesty.

Let’s break it down. First,

This blog posting is exceedingly deceptive and AZBlueMeanie should be ashamed that he posted it. Even liberal zealots deserve the whole truth.

First of all, the blog posting’s title deceptively suggests that it was the additional court members that Governor Ducey appointed to the Supreme Court who are the cause of this ruling. However, this ruling was nearly unanimous, so the added members the governor put on the court has nothing to do with this ruling. So called court packing is not an issue.

I did not “suggest” anything, I simply stated a fact.

Six of the seven Justices currently sitting on the Arizona Supreme Court were appointed by Governor Doug Ducey (Justice Timmer was appointed by Governor Jane Dee Hull). Gov. Ducey and our authoritarian GQP legislature did, in fact, pack the court – House Bill 2537 – over the unanimous opposition of sitting justices on the court in 2016. Ducey signs law adding 2 justices to Arizona Supreme Court:

“Additional justices are not required by the court’s caseload,” Chief Justice Scott Bales wrote to Ducey earlier this month. “And an expansion of the court (whatever people may otherwise think of its merits) is not warranted when other court-related needs are underfunded.”

The Atlantic reported in 2016, Arizona Republicans Try to Bring Back Court-Packing. There is no serious dispute that Gov. Ducey and legislative Republicans packed the Arizona Supreme Court.

Former chief Justice Scott Bales retired earlier this year, and out of all the lawyers and judges in Arizona Gov. Ducey could have appointed to fill his seat, he appointed his ex-aid. Ducey appoints ex-aide to fill state Supreme Court vacancy: Ducey appointed “Kathryn Hackett King, a Phoenix lawyer who previously worked on his staff. King, a fellow Republican whom Ducey appointed to the state Board of Regents in 2020, was Ducey’s deputy general counsel from 2015 to 2017.”

If Justice Timmer were to retire sometime in the next two years, Gov. Ducey will have appointed all seven Supreme Court Justices and remade the court in his own image, which will continue well past his leaving the governor’s office. (Voters can correct this when these Justices come up for judicial retention on the ballot, but most voters pay little attention to the judicial retention ballot).

When you read the Prop. 208 opinion, the majority opinion – by six Ducey appointed justices – spend quite a bit of time sniping at the partial dissent by Justice Timmer, the lone non-Ducey justice.

And if you want to talk about deceptive: Rep. John Kavanagh is one of the named legislative plaintiffs in this lawsuit, a relevant fact he conveniently failed to disclose.

Next,

Meanie then fails to mention that the group that placed this initiative on the ballot was warned by non-partisan Legislative Council that the wording was probably unconstitutional and that if they wanted to get that money to the schools, they should do it by a constitutional amendment and not a regular initiative. Legislative Council’s reasoning was that the school spending cap was introduced by a constitutional amendment and initiatives cannot override the constitution, a position that the Arizona Supreme Court confirmed in its ruling. The group ignored that advice probably because constitutional changes require more signatures and now they’re paying the price.

This factual statement cited in the opinion was not relevant to the Court’s Prop. 208 analysis, which is why it did not merit a mention.

I would add that the GQP controlled legislature regularly ignores the opinions of the legislative council and does whatever the hell it wants, which is why there have been so many lawsuits over the years challenging the constitutionality of the laws enacted by the Arizona legislature. The legislature regularly loses these cases. (One reason why Gov. Ducey packed the Supreme Court to prevent this from happening).

This new development, thanks to the GQP legislative plaintiffs who brought this ill-conceived lawsuit against Prop. 208, does merit mention. Jeremy Duda reports, Collateral damage: Supreme Court ruling jeopardizes another $600 million in school funding:

When the Arizona Supreme Court ruled against an income tax hike that voters approved last year, it illuminated another K-12 funding issue that could strip $600 million a year out of Arizona schools.

Funding from the legislature’s 2018 extension of an expiring sales tax is likely to count against an education spending limit that voters imposed on the state more than four decades ago. Recent increases in K-12 spending, along with a COVID-induced reduction in the spending cap, are making an urgent problem all the more dire.

Proposition 301, which voters approved in 2000, enacted a six-tenths percent sales tax increase to fund education. That tax hike was only good for 20 years, so in the face of a rapidly approaching expiration date, lawmakers and Gov. Doug Ducey approved an extension in 2018.

But they didn’t replicate a key element of Prop. 301. While lawmakers two decades ago recognized that the sales tax money would violate the constitutional spending limit and convinced voters in 2002 to exempt the recently approved ballot measure, that exemption doesn’t apply to the 2018 extension — and legislators haven’t asked voters to ensure that schools can spend the money.

Lawmakers three years ago copied language from the 2000 ballot measure declaring that money from the reauthorized sales tax hike is exempt from the spending limit, but didn’t ask voters to amend the 1980 spending cap to exempt the sales tax extension.

And the Supreme Court’s ruling last week on Proposition 208 makes clear that that won’t cut it, putting the $600 million in annual sales tax revenue in jeopardy.

[T]hough [the court] never mentioned Prop. 301 in the ruling, the justices made clear that, without an amendment to the state constitution, the legislature has no power to exempt that sales tax revenue from the spending limit.

Legislative Council, which advises lawmakers on legislation, has also concluded that the 2002 constitutional amendment doesn’t exempt funding from the 2018 reauthorization of the Prop. 301 tax, which went into effect in July.

Without this ill-conceived lawsuit and Ducey’s packed Supreme Court, this would likely never have come to attention and posed a new education funding crisis for Arizona. Thanks for that, Troll Boy.

No court has yet said that the Prop. 301 money will count toward the cap. But one lawsuit may be all it takes to trigger an education funding crisis involving the sales tax money. It’s unclear whether anyone will actually go to court over the issue.

Oh, our anti-education GQP legislators will now that they know they can cut even more revenue from public education.

The Arizona Department of Education is now looking into the issue and trying to determine what the ruling and the spending limit issue mean for Prop. 301.

[L]awmakers have a couple of options to alleviate the problem, one short-term and one long-term. Over the past couple years, neither has had much luck at the Capitol [with anti-education GQP legislators].

The constitution allows the legislature to exceed the cap for one year with a two-thirds vote, which has happened only twice since 1980. Lawmakers could also send another measure to the ballot, as they did in 2002, asking voters to amend the cap so that it won’t apply to the Prop. 301 extension. Or they could ask voters to increase the spending limit, as they did in 1986 when it was increased by 10%.

You should note that Troll Boy failed to mention this. Rather than suing to overturn Prop. 208, the GQP legislative plaintiffs could have (1) voted to exceed the spending cap or (2) referred a ballot measure to the ballot for voters to increase the spending limit, in order to effectuate voter approval of Prop. 208. Instead, their malicious goal is to eliminate voter approved funding for public education.

[If] the funding from either Prop. 208 or Prop. 301 counts toward the spending cap, determining exactly how far over the limit the state will be is difficult.

Rep. Paul Boyer said legislative budget analysts are predicting the state will exceed the spending limit this fiscal year.

“Even if (Prop.) 208 gets tossed out by the courts, which it sounds like it’s going to, we’re going to exceed the limit this fiscal year anyway,” he said.

[E]xacerbating the problem now is a substantial lowering of the cap, a result of the decrease in student enrollment caused by the pandemic. The limit was about $6.3 billion for fiscal year 2021, but is down to $6 billion for the current year.

So now Arizona is faced with yet another school funding crisis because these GQP legislative plaintiffs filed a lawsuit and got the Ducey packed Supreme Court to do their bidding, overturning Prop. 208.

And finally,

Finally, Meanie suggests that this court ruling undermines the will of the people to enact law by initiative but he fails to acknowledge that the spending limit, which is the reason why this extra money probably can’t be spent, was initiated not by the legislature but by a vote of the people when they amended the Arizona constitution at the ballot box. So, the bottom line is that the people who placed this initiative on the ballot were actually unconstitutionally trying to subvert the will of the voters who change the constitution and put the spending limit in place.

This is disingenuous. In 1980, the legislature referred a series of ten amendments to the Arizona Constitution, presented to the voters as a referendum in a special election on June 3, 1980. The Republican controlled legislature set the first week of June for the special election, when most voters with school-age children go on summer vacation (this is in the days before early voting). This left elderly retirees who typically oppose paying taxes to educate other people’s children (always a problem with school override elections).

Proposition 109 proposed limits on expenditures by school districts and community college districts. Article IX, section 21. Yes, the voters approved this referendum.

Special Elections are always low voter turnout elections, especially in early June when it is hotter than hell in Arizona, and voters were more focused on the Iranian hostage crisis at the time. (I have asked the Secretary of State’s office for the vote totals for and against Prop. 109, but I have not yet received a reply). Suffice it to say that perhaps only tens of thousands voters more than 40 years ago approved this anti-tax measure. (In the 1980 general election, Arizona had only 1,121,169 registered voters, and a “record” turnout, at that time, of total ballots cast 898,193. The Special Election in June without doubt was only a small fraction of this total). In 2020, Proposition 208 was approved by voters 1,675,810 to 1,562,639. The margin of 113,171 almost certainly exceeds the margin for Proposition 109 in the June 1980 special election.

In any event, most of these 1980 voters are dead now. The dead hand of voters from over 40 years ago should not strangle the future of our children today. (Thomas Jefferson believed that a country’s constitution should be rewritten every 19 years). What this lawsuit has done is highlight that this antiquated anti-tax provision in the Arizona Constitution, Article IX, section 21 – Prop. 109 (June 1980), should be referred back to the voters for repeal.

As Julie Erfle explains, The Supreme Court’s flawed ruling on Invest in Ed should not stand (excerpt):

Voters passed the expenditure limit in 1980. Back then, schools looked much different from today. There were no personal computers or technology labs. No Wi-Fi or charter schools. Our state ranked near the national average in per pupil funding, unlike now when we hover between 49th and 50th and cannot fill more than a quarter of our teacher vacancies.

The law is a relic that legislators should refer back to the ballot. I’m convinced voters would be happy to overturn it, especially since most don’t even realize it exists. But even if they do not, lawmakers have within their power the ability to override the cap and have already done so on two different occasions.

David Lujan, the CEO and president of Children’s Action Alliance — one of the organizations responsible for crafting the Invest in Education initiative — and a former state legislator explains:

Lujan stressed that the Legislature should address this antiquated law soon, since we are regularly bumping up against the cap, and do we really want a law that mandates a last-in-nation ceiling on expenditures?

So long as the law remains as is, we’ll be unable to fully fund all-day kindergarten and special education services or bring teacher salaries up to the national average. 

Julie Erfle continues:

Unfortunately, the court’s justices didn’t do their homework. But all is not lost.

The case has been sent back to the trial court. There’s an opportunity now for school finance experts to testify about existing law and how expenditures limits are currently handled.

Let’s hope this court gets it right, and our students aren’t sentenced to another decade of overcrowded and poorly funded classrooms.

Which is the goal of these GQP legislative plaintiffs in this lawsuit. They have been doing this for decades.

Their lawsuit could result in the unintended consequence of the public demanding that the Arizona Constitution, Article IX, section 21 – Prop. 109 (June 1980) be referred back to the voters for repeal. Take that, Troll Boy.