Our lawless Arizona legislature faces another lawsuit for its failure to fund public education

In September 2013, the Arizona Supreme Court ruled in Cave Creek Unified School District, et al. v. Doug Ducey, et al (cv-13-0039) (.pdf) that our lawless Arizona legislature violated Prop. 301 (2000), a ballot measure referred to the voters by the legislature, which requires the legislature to adjust the “base level” education funding formula for K-12 each year in accordance with inflation.  The Court further held that our lawless Arizona legislature violated the Voter Protection Act, Prop. 105 (1998). The case was remanded to the trial court.

In July 2014, Maricopa County Superior Court Judge Catherine Cooper, following the mandate of the Arizona Supreme Court, ordered the state to adjust base funding for schools in the coming fiscal year to $3,560 per student, a collective increase of about $317 million. Ruling on school funding (.pdf). That order has since been appealed.

A second matter for the trial court, whether to order reimbursements for schools for unfunded inflation adjustments for fiscal years 2009 to 2014, estimated at $1.4 billion, was heard by Judge Cooper in October 2014.

Judge Cooper has delayed issuance of her ruling pending the parties’ agreement to a voluntary settlement conference, which will be mediated by judges John Gemmill, Peter Swann and Kenton Jones of the Arizona Court of Appeals.  To my knowledge, a date has not been scheduled for this settlement conference.

What you should know about a settlement conference is that, while Arizona Rule of Civil Procedure 16(f) requires a a party or party’s attorney to participate in good faith in a settlement conference, there is no requirement that the parties actually achieve a settlement agreement. They may agree to disagree, and to proceed in court. This is what I anticipate will occur in this case.

Meanwhile, an earlier case in which our lawless Arizona legislature shortchanged our public schools, in which the Arizona Supreme Court held that the statutory financing scheme for public education violated the Arizona Constitution, Article XI, § 1, Roosevelt Elem. School Dist. No. 66  v. Bishop (No. CV-93-0168 1994), is now the basis for yet another lawsuit against our lawless Arizona legislature.

The Arizona Capitol Times (subscription required) reports, Lawsuit will seek funding for school maintenance:

A public interest advocacy group is planning a lawsuit alleging that the state has unconstitutionally underfunded building maintenance and soft capital for school districts, which could force the state restore hundreds of millions of dollars of budget cuts made in recent years.

The Arizona Center for Law in the Public Interest plans to sue on behalf of several school districts and taxpayers, said attorney Tim Hogan. The Glendale Elementary School District’s governing board in December voted to join the lawsuit as a plaintiff, and Hogan said he plans to bring in several other school districts, along with property taxpayers from districts that have approved bonds to make up for funding shortfalls.

“It will allege that the current system is unconstitutional because it doesn’t provide any dedicated capital funding to school districts sufficient to ensure that they meet the state’s minimum standards,” Hogan said of the lawsuit. “School buildings have to be renovated. They have to be repaired. They have to be maintained. And all of that requires significant dollars.”

Hogan said he could file the suit within the next month.

In its landmark ruling in Roosevelt Elementary School District No. 66 v. Bishop, the Arizona Supreme Court concluded that the state had violated a provision in the Arizona Constitution requiring the state to establish and maintain a “general and uniform” public school system. As part of its settlement in the case, which led to the creation of the Arizona School Facilities Board, the state agreed to provide funding for building renewal, which covers all aspects of building upkeep and maintenance, and soft capital expenditures such as textbooks and computers.

But that funding has dried up since the budget crises that were triggered by the Great Recession. Hogan said the SFB now provides $15 million to $20 million for building renewal, as opposed to the $250 million it would provide if the state’s Building Renewal Fund hadn’t been eliminated in 2013. Meanwhile, Hogan said school districts issue $300 million to $500 million in bonds each year, some of which is used to cover unfunded building renewal costs.

And soft capital funding from the state used to top $200 million per year, Hogan said. But that funding was cut in half when it was combined with capital outlay funding under the District Additional Assistance program, which was created in 2013. And Gov. Doug Ducey has proposed cutting an additional $113 million in District Additional Assistance funding for fiscal year 2016.

Hogan said the lawsuit will not seek a specific dollar amount from the state. Instead, it will ask for “sufficient funding” to cover building renewal and soft capital costs, which he noted could exceed $400 million, based on previous funding levels.

Hogan has the advantage of a stipulated settlement agreement that he can enforce in court. He also has the Arizona Constitution on his side. Our lawless Arizona legislature routinely violates two provisions of the Arizona Constitution out of ideological opposition to government, public education, and taxes:

Article XI, Section 6: The university and all other state educational institutions shall be open to students of both sexes, and the instruction furnished shall be as nearly free as possible. The legislature shall provide for a system of common schools by which a free school shall be established and maintained in every school district for at least six months in each year, which school shall be open to all pupils between the ages of six and twenty-one years.

Article IX, Section 3: The legislature shall provide by law for an annual tax sufficient, with other sources of revenue, to defray the necessary ordinary expenses of the state for each fiscal year. And for the purpose of paying the state debt, if there be any, the legislature shall provide for levying an annual tax sufficient to pay the annual interest and the principal of such debt within twenty-five years from the final passage of the law creating the debt.

Our lawless Arizona legislature has for years been in violation of the Arizona Constitution because: (1) it is failing to provide for the cost of public education, and (2) it refuses to raise taxes sufficient “to defray the necessary ordinary expenses of the state for each fiscal year.”

I would add a third constitutional violation: a judgment is an enforceable debt, and our lawless Arizona legislature’s refusal to comply with a lawful judgment of the Court on the specious ground that “we don’t have the money to pay it” (read: “we refuse to raise taxes to pay for it”) is also a violation of Article IX, Section 3. Our lawless Arizona legislature is a deadbeat debtor.

Solving this problem is going to require the repeal of Prop. 108 (1992), the “Two-Thirds for Taxes” Amendment, Arizona Constitution Article 9, Section 22, as a necessary prerequisite to raising taxes sufficient “to defray the necessary ordinary expenses of the state for each fiscal year,” as required by the Arizona Constitution.