Gov. Brewer appeals decision giving our lawless legislature standing to proceed with Medicaid expansion lawsuit

Gov. Jan Brewer today filed an appeal to the Arizona Supreme Court seeking to overturn an appellate court ruling allowing legislators standing to proceed with a lawsuit against the hospital assessment that funds Brewer’s Medicaid (AHCCCS) expansion plan. The Arizona Capitol Times (subscription required) reports, Brewer appeals Medicaid ruling to Arizona Supreme Court:

Douglas Northup, Brewer’s attorney, argued that the Court of Appeals’ ruling that the 36 Republican lawmakers have standing to challenge the hospital assessment flies in the face of years of judicial precedent. The lawmakers are asking the court to referee a political dispute in which they ended up on the losing end, Northup wrote in the appeal.

The lawmakers argue that the hospital assessment is a tax that should have required a two-thirds vote in the Legislature under Proposition 108, a 1992 amendment to the Arizona Constitution that mandates a supermajority vote for all tax increases. The budget bill that contained the hospital assessment passed only with a simple majority.

Brewer said she is hopeful that the high court will accept her appeal.

“Permitting the appellate decision to stand confuses and misapplies existing Arizona Supreme Court case law and would set a disturbing precedent in Arizona – one that would result in our courts acting as referees in the legislative process, and also opening a Pandora ’s box for future baseless, politically-charged lawsuits,” Brewer said in a press statement.

Brewer’s attorney argued that the Court of Appeals’ ruling would set an unfortunate precedent in which lawmakers who find themselves on the losing end of votes will routinely turn to the courts.

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“If the Opinion stands, the most likely defendants in any future lawsuits will be the President of the Senate and Speaker of the House in actions brought by the minority party, who will no doubt sue directly in this court,” Northup wrote.

The question is not whether the hospital assessment is subject to a court challenge, Northup wrote – it’s whether the lawmakers have standing to do so.  He said only those who are subject to the assessment, which in this case means hospitals, have standing to challenge it.

“In exceptional circumstances, courts have allowed legislators who otherwise lack standing to challenge statutes if the subject of the lawsuit cannot be challenged by any other party and will evade judicial review,” Northup wrote. “Indisputably, that is not the case here. The entities subject to the Hospital Assessment could bring a Proposition 108 challenge.”

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Northup also noted that the Legislature has approved other fees and assessments with only a simple majority in recent years. Between 2007 and 2012, the Legislature passed at least 89 fees or other net increases in state revenues without a two-thirds vote, the attorney noted.

“Applying the (Court of Appeals) Opinion, a legislator who opposed passage of any of these fees or assessments now could sue to challenge its constitutionality,” Northup said.

Northup noted that Prop. 108 does not apply to “Fees and assessments that are authorized by statute, but are not prescribed by formula, amount or limit, and are set by a state officer or agency.”

The Medicaid expansion plan does not see a specific amount for the hospital assessment, which would trigger Prop. 108. Instead, it authorizes the director of the Arizona Health Care Cost Containment System to set the assessment.

Of course, the “Kochtopus” Death Star, the Goldwater Institute, which represents the 36 Tea-Publican legislators who would deny Arizonans access to health care, will oppose the appeal. The Goldwater Institute is really not concerned about the Medicaid (AHCCCS) expansion per se. What concerns it is maintaining its anti-democratic Prop. 108 (1992), which allows for a tyranny of a minority of anti-tax zealots to obstruct any tax legislation in Arizona. It is the crown jewel in  the Goldwater Institute’s anti-tax crown  of bad public policy, and the single greatest obstacle to much needed tax reform in Arizona.

Your response should be to vote these 36 Tea-Publican legislators out of office this year. Then put repeal of Prop. 108 on the ballot in 2016.