The long-delayed lawsuit by our Tea-Publican legislators and the Goldwater Instititute against Governor Jan Brewer’s Medicaid (AHCCCS) expansion plan, Biggs, et al v. Brewer, et al. (CV2013-011699 Maricopa County Superior Court), is coming up for review before the Court of Appeals in February.

Cartoon_08I have previously explained that this case is ostensibly about the Obamacare medicaid expansion plan, but is really about preserving the GOP’s weapon of mass destruction, Prop. 108 (1992), the “Two-Thirds for Taxes” Amendment. AZ Court of Appeals revives GOP legislators’ challenge to Gov. Brewer’s Medicaid (AHCCCS) expansion; Medicaid (AHCCCS) expansion case set for hearing on July 30, 2015.


The Maricopa County Superior Court rejected the arguments of Tea-Publican legislators and the Goldwater Institute in August of last year. Superior Court judge upholds Brewer’s Medicaid expansion:

A Maricopa County Superior Court judge upheld former Gov. Jan Brewer’s 2013 Medicaid expansion plan, ruling that a hospital assessment that funds the program is not subject to a provision in the Arizona Constitution that requires a two-thirds vote in the Legislature for a tax increase.

Judge Douglas Gerlach ruled that HB2010 did not violate the supermajority provision, which voters approved in 1992 as Proposition 108, because it is not a tax and falls under an exemption to the two-thirds vote requirement.

The Arizona Capitol Times (subscription required) reports, State defends Medicaid expansion Ducey opposed:

The Ducey administration goes to court next month to defend expansion of a health care program for the working poor the governor never wanted in the first place.

The lead attorney for the Arizona Health Care Cost Containment System wants the Court of Appeals to rule that the current $265 million a year levy on hospitals that finances the expansion was legally enacted.

Douglas Northup concedes the plan did not get a two-thirds vote from the House and Senate in 2013, something the Arizona Constitution requires for any new or expanded tax. More to the point, there were enough Republican lawmakers who opposed the levy – the ones who are now trying to have it declared illegal – to deny it that margin.

But Northup contends that the levy is not a tax but instead simply a variable “assessment” to pay for a specific program.

Part of what makes the litigation – and the governor’s defense – so unusual is that Ducey openly opposed the AHCCCS expansion when he was running for governor.

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[T]he possibility that the current governor might provide a less-than-vigorous defense of the law pushed through by predecessor Jan Brewer got the attention of Maricopa County Superior Court Judge Katherine Cooper. She agreed to allow attorney Tim Hogan, representing those who could lose coverage, a seat at the defense table.

Hogan said it’s not just that Ducey, as a candidate, “actively opposed Medicaid expansion.” He also pointed out that Ducey, as governor, chose a health-care adviser from the Goldwater Institute, which also opposed what Brewer engineered.

But whatever Arizona courts decide ultimately could be academic.

The expansion is financed on the federal side by the Affordable Care Act. And if Congress follows through with its threat to repeal the law without replacing it with something else, the program self-destructs.

* * *

The plan was adopted by a simple majority of the House and Senate, with the Republican governor cobbling together a coalition of Democrats and some members of her own party to vote for it.

Hospitals did not object because Betlach set it up so every hospital chain actually would make money from the deal: More patients with government-provided insurance coverage means fewer bills written off as bad debt because of a person’s inability to pay. Betlach even structured it so some hospitals that do not benefit from Medicaid expansion pay nothing.

Despite that, the lawmakers who voted against expansion sued.

They point out that a 1992 state constitutional amendment requires a two-thirds vote of each chamber any time a new tax is imposed. The levy on hospitals did not get that margin.

If the courts ultimately decide it really is a tax, that means it was enacted illegally and goes away – as does the expansion and the care for the 400,000 inividuals.

The case is now before the Court of Appeals after Cooper sided with AHCCCS.

In legal papers already filed in the case, Northup told the appellate judges the state’s participation in Medicaid has been good for the state, and not just because more people have coverage. He said the total federal contribution for the expanded program over a two-year period was about $2 billion.

And, if nothing else, Northup contends that a strict reading of the Arizona Constitution backs his contention that the assessment is not the kind of levy that requires a two-thirds vote.

I keep telling you that unless people get serious about repealing the GOP’s weapon of mass destruction, Prop. 108 (1992), the “Two-Tirds for Taxes” amendment, no good can ever be accomplished in this state on education, healthcare, welfare and infrastructure.


The real “Obamacare death panel” — 36 Arizona Tea-Publican legislators and their lawyers at the “Kochtopus” Death Star, The Goldwater Institute, and the “Kochtopus” Americans for Prosperity:

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.