Medicaid (AHCCCS) expansion case set for hearing on July 30, 2015


I lost track of Biggs, et al v. Brewer, et al. (CV2013-011699 Maricopa County Superior Court), the Medicaid (AHCCCS) expansion case brought by almost every Tea-Publican legislator, because there was recently a reassignment of cases among the judges of the Maricopa County Superior Court of which I was not aware. This case has been reassigned to Judge Douglas Gerlach, as of July 22, 2015.

Image: Supreme Court Upholds Obama's Affordable Care ActThe hearing that had been scheduled for Friday, July 17, in Maricopa County Superior Court has been rescheduled to Thursday, July 30, 2015 at 10:00 a.m. in the East Court Building, Suite 513.

The parties have filed motions for summary judgment to the Court, because there are no genuine issues of material facts in dispute, and the Court can decide the case as a matter of law.

The issue is the proper application of Prop. 108 (1992), the “two-thirds for taxes” initiative in the Arizona Constitution. It only takes a simple majority of the legislature to cut taxes and to grant special interest tax exemptions and tax credits. But it takes a two-thirds super-majority of each chamber of the legislature to repeal or to decrease any such tax cuts or special interest tax exemptions and tax credits. And it takes a two-thirds super-majority of each chamber of the legislature to increase taxes or to impose a new tax.

I frequently refer to Prop. 108 as the GOP’s “‘weapon of mass destruction” because it is the source of the state’s fiscal ills and structural revenue deficit. I have long advocated for its repeal. It serves as the jurisdictional basis for this case being in court.

There are certain exemptions from the requirements of Prop. 108, such as an administrative assessment or fee charged by state agencies. This is what Gov. Jan Brewer and the coalition of legislators who banded together to pass the Medicaid (AHCCCS) expansion plan hung their hats on with A.R.S. 36-2901.08, which authorizes the AHCCCS Administration to establish, administer and collect an assessment on hospital revenues, discharges or bed days for funding a portion of the nonfederal share of the costs incurred for the Medicaid expansion.

It is undisputed that this bill passed by a simple majority vote without the two-thirds super-majority of each chamber of the legislature required by Prop. 108 for a new tax.

The question to be decided by the Court is whether the hospital assessment is a “new tax” requiring a two-thirds super-majority vote of each chamber of the legislature, or whether it qualifies for one of the exemptions to Prop. 108.

I have previously stated my view that I think Governor Brewer and the pro-expansion legislators have the weaker argument, and that the anti-expansion Tea-Publican legislators have the stronger argument. As I said, Prop. 108 has been the GOP’s “weapon of mass destruction.” In any event, this case will eventually be appealed up to the Arizona Supreme Court for a final decision. That decision is  not likely to occur before the November 2016 election.

So here’s a thought: put the repeal of Prop. 108 on the ballot in November 2016. If the repeal passes, the jurisdictional basis for this lawsuit disappears. A simple majority vote to reaffirm the earlier vote would end it. An added benefit would be that Arizona could now finally do long overdue tax reforms to address its fiscal ills and structural revenue deficit.

The Tea-Publican plaintiffs in this case are: Andy Biggs, Andy Tobin, Nancy Barto, Judy Burgess, Chaster Crandell, Gail Griffin, Al Melvin, Kelli Ward, Steve Yarbrough, Kimberly Yee, John Allen, Brenda Barton, Sonny Borrell, Paul Boyer, Karen Fann, Eddie Farnsworth, Thomas Forese, David Gowan, Rick Gray, John Kavanagh, Adam Kwasman, Debbie Lesko, David Livingston, Phil Lovas, J.D. Mesnard, Darin Mitchell, Steve Montenegro, Justin Olsen, Warren Petersen, Justin Pierce, Carl Seel,  Steve Smith, David Stevens, Bob Thorpe, Kelly Townsend, Michelle Ugenti, Jeannette Dubreil, Katie Miller, Tom Jenney.