Lawsuits To Defy The Citizens of Arizona on Invest In Ed, Prop. 208

Last week I posted about the Libertarians to File Challenge To Invest In Ed, Prop. 208. The plaintiffs’ lawyer, Logan Elia, at one time worked at the Goldwater Institute and the American Legislative Exchange Council, and was a recipient of the prestigious Koch Fellowship.

Now the “Kochtopus” Death Star, the Goldwater Institute, is getting directly involved with its own lawsuit challenging Invest In Ed, Prop. 208.

Republican legislative leaders are their clients: Karen Fann, “Rusty” Bowers, David Gowan, Vince Leach, Regina Cobb, and John Kavanagh, a few individual taxpayers, No On 208 PAC, and the Arizona Free Enterprise Club.

The No On 208 PAC, the Arizona Free Enterprise Club, and Republican legislators had their chance to make their case to the voters during the election, and they failed. Now they want to defy the citizens of Arizona who enacted Prop. 208 by having the courts nullify the will of the voters and further render their constitutional right to enact citizens initiatives null and void.

The Arizona Capitol Times reports, Prop 208 heads to court:

Top Republican legislative leaders filed suit Monday to block implementation of the voter-approved tax on the income of the wealthiest Arizonans.

The Verified Complaint (.pdf) filed in Maricopa County Superior Court contends that the Arizona Constitution allows only the legislature to impose a new tax, and then only with a two-thirds vote.

“Because Proposition 208 did not meet either requirement, its new tax was not constitutionally enacted,” the lawsuit reads.

This is total bullshit. As I explained in the previous post about a similar argument in the other lawsuit:

Article 2, Section 2 of the Arizona Constitution expressly states “All political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights.” Article 4, Section 1, Part 1 re: “Legislative authority; initiative and referendum” expressly states “The legislative authority of the state shall be vested in the legislature, consisting of a senate and a house of representatives, but the people reserve the power to propose laws and amendments to the constitution and to enact or reject such laws and amendments at the polls, independently of the legislature; and they also reserve, for use at their own option, the power to approve or reject at the polls any act, or item, section, or part of any act, of the legislature.”

And as Howard Fisher reported, cited in the earlier post:

Logan Elia acknowledged that Arizona voters have enacted numerous prior levies at the ballot box. That includes the taxes on tobacco products with the proceeds earmarked to fund health care and a 0.6-cent sales tax hike in which voters directed that the dollars be put into classroom spending.

Even the just-approved Proposition 207 legalizing the recreational use of marijuana imposes a new tax on sales.

Capitol Times continues:

The lawsuit also points out that the measure, approved by voters by a margin of 51.7% to 48.3%, seeks to exempt the money raised from the constitutional cap on how much schools can spend. The attorneys say a statute — even one approved by voters — cannot override what is in the Arizona Constitution.

Attorneys for the challengers also say that the amount of spending the Invest in Ed initiative would require exceeds the amount of revenues that would be raised by the new 3.5% surcharge on incomes above $250,000 for individuals and $500,000 for married couples filing jointly.

Finally, the claim says it illegally ties the hands of state lawmakers by telling them they cannot use the new revenues that would be raised — about $940 million a year — to reduce education spending elsewhere.

That provision in particular gets the attention of the lawmakers who agreed to sign on to the lawsuit filed by the Goldwater Institute, including House Speaker Rusty Bowers and Senate President Karen Fann. (See above).

“Proposition 208 restricts their ability to appropriate funds for other legislative priorities,” wrote attorneys in the case.

That was the whole point of the proposition! Republicans have been underfunding public education in Arizona for decades. And when there is a budget shortfall the very first thing they cut, or steal from, is funding for public education. But they will never raise taxes, as the Arizona Constitution actually requires. Article 11, Section 10, second clause: “In addition to such income the legislature shall make such appropriations, to be met by taxation, as shall insure the proper maintenance of all state educational institutions, and shall make such special appropriations as shall provide for their development and improvement.”

“These legislative leaders further understand that despite the authorities vested in their offices and position, they are powerless under Proposition 208 to divert funds from the general fund, each with a supermajority,” attorneys said [because of the Voter Protection Act, Proposition 105 (1998)]. And that, the lawyers said, limits their ability not just to reduce state taxes but also respond to emergencies and “eliminate educational programs that are no longer necessary or are deemed ineffective.”

The bottom line is that the litigation seeks an injunction order barring any implementation or enforcement of the ballot measure until there can be a full-blown hearing.

[The] separate lawsuit (above) also was filed Monday by Ann Siner, founder of My Sister’s Closet, and retired Maricopa County Superior Court Judge John Buttrick.

Backers of the measure are expected to fight both lawsuits.

Attorney Roopali Desai who represents the Invest in Ed initiative said what’s lost in all this is that the Arizona Constitution makes the people co-equal with the legislature when creating law. And that, she said, means they have the same powers as lawmakers, even if the elected legislators disagree.

In fact, in some ways the powers of the people are superior. That’s because a constitutional provision [the Voter Protection Act, Proposition 105 (1998)] bars lawmakers from repealing what voters have enacted. And they can make only changes that “further the purpose” of the voter-approved measure, and only with a three-fourths vote of both the House and Senate.

The measure, put on the ballot with a petition gathering process, was pushed by the Arizona Education Association and allied groups seeking to restore cuts that have been made to K-12 funding in the past decade. They say that per-student aid has not kept pace with inflation and student growth.

Half of the funds are earmarked for schools to hire teachers and classroom support personnel, such as librarians, nurses, counselors and coaches. The dollars also could be used for raises.

Another quarter is for support services personnel, including classroom aides, security personnel, food service and transportation.

There’s also 12% for grants for career and technical education programs, 10% for mentoring and retaining new teachers in the classroom, and 3% for the Arizona Teachers Academy to provide tuition grants for those who go into education.

Foes, led by the Arizona Chamber of Commerce and Industry, argued there was no guarantee that the cash would go to teachers and salaries.

They also pointed out that it would raise the state’s top income tax rate, now 4.5%, to 8%, which they said would be one of the highest in the nation. And that, they argued, would be a damper on economic development.

But David Lujan, director of the Arizona Center for Economic Progress, pointed out that the only people affected would be those whose taxable income — after all deductions and credits — would be above $250,000 for individuals and $500,000 for couples.

Foes also questioned how much of the cash would wind up in the classroom.

They pointed out that the most recent report by Auditor General Lindsey Perry said just 54.7 cents of every dollar goes into direct classroom expenses.

But as Perry’s report pointed out, there is more to that story.

One is that figure does not include other necessary instructional support like librarians and teacher training, nor guidance counselors, nurses, speech pathologists and social workers. And Perry said that, on average, Arizona schools spend less on administrative expenses than the rest of the country.

Other challengers in the suit brought on behalf of Fann and Bowers include other Republican lawmakers and the owners of three businesses who say their income exceeds that $500,000 threshold and would be affected by the new law.

No date has been set for a hearing.

This is going to be tied up in court for awhile, which is the whole point of these lawsuits. Republican legislators do not want to fund public education in Arizona, even when the majority of Arizonans sent a clear message with the passage of Prop. 208 to do their damn job and fund pubic education.