Posted by AzBlueMeanie:
First a quick update: The Accidental Governor and the GOP insane clown posse are trying for a special session this week to deal with agency funding issues. They were to have met over the weekend to hammer out the details of a plan that they hope will be a one day special session on Thursday. I checked the Governor's web page and she has not yet called for a special session, and her calendar has her going out of town this week. Things could change, but it's not looking optimistic.
There has been a troubling trend in Arizona government for years now. The Arizona Legislature deems itself all-knowing and all powerful and simply disregards the Arizona Constitution and state and federal laws when it wants to do something. Many Republicans in the Arizona Legislature believe legislative enactments are the final word and should not be subject to judicial review (apparently they never learned about Marbury v. Madison). We are the law, dammit! They seem to reject the coequal branches of government, checks and balances principle.
Inevitably, the state of Arizona gets sued and more often than not the state loses. Win or lose, the Arizona Legislature's arrogant disregard for the rule of law costs this state money in court costs and attorney's fees.
Jim Small of the Arizona Capitol Times (subscription required) recently wrote an excellent summary on the current status of our litigious legislature, Lawmakers getting hammered in court; resources strained:
[T]he choices lawmakers made this year in an effort to balance the budget have led to six lawsuits challenging the state’s use of fund sweeps to fill in deficits.
The state has already lost two of those suits and two more appear headed toward a similar outcome. Counting challenges to fund sweeps, policy changes and a state Supreme Court battle with Gov. Jan Brewer, the Legislature has been sued a dozen times this year, costing the state valuable resources to defend the cases in court.
The Attorney General’s Office estimates that 3,300 total hours have been spent so far defending the suits. Determining the precise financial cost is difficult, as the office has not separated hours spent on the cases by paralegals from senior attorneys, which typically cost the state $150 to $200 an hour in salaries.
Critics say Republican lawmakers have been far too willing to flout the law in their quest to erase billions of dollars of red ink – and pack in several policy objectives.
“Maybe the Legislature doesn’t care about the Constitution,” said Paul Eckstein, a Phoenix attorney. “They’ve had four cases that have run roughshod over the Constitution. They think it’s 31 and 16; that that’s what’s constitutional. And there’s something wrong with that.”
* * *
Each of the six lawsuits challenging fund sweeps contained essentially the same argument: The money in the funds wasn’t the state’s to take.
But the Legislature’s legal problems don’t end with the fund sweeps.
Several lawsuits have been filed to challenge other laws passed this year, including abortion restrictions and a requirement that all city elections be nonpartisan. Yet another lawsuit was filed on the premise that the Legislature acted on policy matters outside the scope of a special session.
Republican legislative leaders also lost a court battle with Brewer, who sued lawmakers over their refusal to send her a package of budget bills they had passed. The Arizona Supreme Court ruled the Legislature must transmit approved bills as quickly as possible, as per the state Constitution.
The House and Senate split a $37,500 legal bill in its attempt to defeat Brewer’s lawsuit by hiring private attorney David Cantelme, according to House records.
* * *
Litigation over fund sweeps wasn’t entirely unexpected. Lawmakers were put on notice last year, when several agricultural groups sued after the state took $160,000 as part of the fiscal 2009 budget. The suit was filed in September 2008, alleging the money swept into the state’s general fund belonged to private industry and was pooled together in a state-operated fund to advance grain, citrus and lettuce research and marketing.
Although a ruling on the lawsuit wasn’t issued until July, the arguments from both sides were essentially the same as in legal challenges to fund sweeps made in January as part of an emergency fix to the fiscal 2009 budget and as part of the fiscal 2010 budget.
Senate President Bob Burns acknowledged that budget analysts warned the state was vulnerable to lawsuits if certain funds were swept.
* * *
The state’s track record in defending itself in lawsuits stemming from fund sweeps is poor so far. In addition to losing the suit filed by the agricultural groups, judges have said two other sweeps were illegal and signaled two more likely are, as well.
Over the summer, Maricopa County Superior Court judges ruled the Legislature’s decision to take $18.5 million from the Science Foundation of Arizona was illegal. The state’s highest court also struck down a sweep of $7 million in interest held by the Arizona Early Childhood Development and Health Board. The board’s revenue comes from a voter-approved 80-cent tobacco tax.
The Legislature’s hand has also been slapped away – at least temporarily – from an account operated by the state’s Industrial Commission that is used to cover private businesses workers’ compensation expenses and to reimburse insurance carriers.
Lawmakers tried to take $4.7 million from the Industrial Commission’s account. The case is still pending before a Maricopa County Superior Court judge, who in July granted a restraining order preventing the state from taking the money. In order issue the order, the judge had to find there was a strong likelihood the Industrial Commission could ultimately prevail in its suit.
Similarly, two state-run insurance guaranty funds that sued over sweeps of $30 million in January’s emergency budget fix were granted a preliminary injunction in August, preventing the funds from being raided.
* * *
Other lawsuits have been averted or withdrawn because the Legislature reversed some fund sweeps to avoid losing in court. In March, lawmakers reinstated $2 million swept from funds managed by the Arizona Power Authority.
The Power Authority had petitioned for the Supreme Court to intercede and, while the high court declined to take up the case, the filing prompted lawmakers to return the money. At the same time, lawmakers also reversed about $16.8 million in other sweeps to environmental, agriculture and health funds in order to avoid litigation.
Bob Lynch, an attorney who represents the Power Authority, is challenging a fund sweep that is set to pull $5.4 million from the Arizona Water Banking Authority. The money was contributed by the state of Nevada as part of a multi-state deal for Colorado River water. The Supreme Court has yet to decide whether it will hear the lawsuit.
* * *
Adams shakes off accusations that lawmakers acted on the presumption that legislative prerogative and a majority vote trump the state Constitution. Guidelines on legislative authority to take money from specific funds are still undefined by the courts, he said. The law is clearer, by comparison, on the constraints of a governor’s authority to do so.
* * *
Attorney General Terry Goddard’s office has been the chief defender of the sweeps in court. Although the budget mechanism has helped give the Legislature access to money without raising taxes, Goddard said the rampant use of the technique in recent budgets is causing governance problems. Every time lawmakers turn to sweeps, he said, it strains the relationship between the state and the entity facing the loss of its money.
“We’re trying to defend them as best we can – that’s my job,” he said. “But from a public policy perspective…it’s just like you’re tearing the state apart.”
* * *
Goddard said he estimates that nearly the entire civil division has been called upon to defend roughly 20 lawsuits the Legislature is facing, and the growing fund-sweep caseload is taking its toll. “There’s no question that there is an opportunity cost,” he said. “Certainly flexibility is lost and the ability to get out in front of problems. You have to become reflexive instead of proactive.
“They were anxious to grab every dime that wasn’t tied down, and certainly they’ve violated some rights along the way.”
* * *
The Constitution gives the Legislature the power to appropriate state money. While the lawsuits may give lawmakers and onlookers heartburn now, they will ultimately provide guidance for future legislatures that face economic downturns. The decision to navigate untested legal waters is done to preserve the power of appropriation, Adams said.
“It doesn’t mean that, for fear of a lawsuit, we don’t do something.
The Legislature has the right to appropriate,” he said. “I think this situation demonstrates why it’s important. We’re trying to balance a state budget with a third of the budget essentially untouchable (because of voter protection). That’s a tall order and a neat trick if you can do it.”
That's right, it's you damn voters who are the reason why the GOP insane clown posse has to disregard the Arizona Constitution and state law so it can steal money from dedicated funding sources of programs that you voters approved so it can balance the state budget (without raising taxes of course), and the state winds up getting sued in court for it. Laws are for other people like you to obey.
This reminds me of Flip Wilson's classic "the devil made me do it" excuse. When politicians blame the voters who elected them to office for their own incompetence and ineptitude, its time for those voters to say "you're fired!"