education_appleIn reviewing the docket for Cave Creek Unified School District et al. v. Ducey (CV2010-017113), before Judge Catherine Cooper of the Maricopa County Superior Court this week, I see that our lawless legislature filed a “Memorandum of Law on the Impossibility Defense.” A link to the document is not available on the Court web site.

“Impossibility” or “impracticality” is a contract defense to performance of contract that I have not previously seen asserted in response to a legislatively referred state statute, Prop. 301 (2000), regarding a legislative budget act.


I do not know the particulars of the case law cited by the Arizona legislature, but I did find this case from the Missouri Supreme Court from June 2013 that discussed the impossibility defense to a state statute, as asserted by local school districts in that particular case, in which the Court rejected the defense. Gina Breitenfeld, Appellant vs. School District of Clayton, et al. (No. 92653) (.pdf) (at Page 31):

The “impossibility” arguments that the defendant school districts raised against the enforcement of section 167.131 echo the doctrine of impossibility (or impracticality) that typically is applied in the realm of contract law. In the context of contracts, “impossibility” is explained as follows: “If a party, by contract, is obligated to a performance that is possible to be performed, the party must make good unless performance is rendered impossible by an Act of God, the law, or the other party.” Farmers’ Elec. Co-op., Inc. v. Missouri Dep’t of Corr., 977 S.W.2d 266, 271 (Mo. banc 1998). This concept, however, is not applied unless the party arguing an “impossibility” defense has demonstrated that virtually every action possible to promote compliance with the contract has been performed. Id. (“A party pleading impossibility as a defense must demonstrate that it took virtually every action within its powers to perform its duties under the contract.”); see also Bolz v. Hatfield, 41 S.W.3d 566, 573 (Mo.App. 2001). This reflects the admonition that “[a] party cannot by its own act place itself in a
position to be unable to perform a contract, then plead that in ability to perform as an excuse for nonperformance.” Farmers’ Elec., 977 S.W.2d at 271.

Our lawless legislature clearly does not qualify for this defense.

First, Prop. 301 (2000) is a legislatively referred state statute from which the legislature now seeks to avoid compliance. The party that proposed its performance requirement is unilaterally seeking to avoid its own performance. Performance was not rendered impossible by the other party, i.e., the school districts.

The Arizona Voter Protection Act, Prop. 105 (1998), would require a “three-fourths vote to amend measure, to supersede measure, or to transfer funds designated by the measure, and only if each furthers the purpose of the measure.” The failure of the legislature to pay the inflation adjusted appropriation to the school districts was not in furtherance of the purpose of Prop. 301 (2000), as the Arizona Supreme Court has already ruled.

Second, the Arizona legislature cannot demonstrate that “virtually every action possible to promote compliance with the contract has been performed.” The state of Arizona possesses a power which a private party to a contract, or a political subdivision of the state without legislative authorization does not: the power to compel the payment of taxes.

Cartoon_26In fact, the Arizona legislature has a constitutionally prescribed duty to raise taxes sufficient to pay for the maintenance of the public education system. Arizona Constitution, Article 11, Section 10, clause 2: “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.”

Not only did the Arizona legislature fail its constitutionally prescribed duty to raise taxes to insure the proper maintenance of all state educational institutions, state legislators and GOP gubernatorial nominee, State Treasurer Doug Ducey, led the opposition to a citizens initiative to provide additional tax revenue for education, Prop. 204 in 2012. This is the exact opposite of taking “virtually every action within its powers to perform its duties” with respect to public education.

The Arizona legislature will assert that Prop. 108 (1992) requires a tw0-thirds super-majority in each chamber to pass any tax increase, which renders this “impossible” because of the ideological extremism of Tea-Publicans in the legislature. Lack of will to do what is just and necessary is not the same thing as “impossible.” If enough Republicans joined with Democrats in the legislature to pass long overdue tax reforms, a two-thirds majority is achievable. In any event, the legislature could refer the undemocratic Prop. 108 back to the voters for repeal.

Finally, the Arizona legislature has unclean hands and is not entitled to a remedy at law or equity. The Arizona legislature acted in bad faith — at the same time it was making the deepest cuts to education funding in the country, Study: Arizona 1st in cuts to schools, Governor Brewer and our Tea-Publican controlled legislature were also enacting a series of corporate welfare tax cuts that will reduce state revenues. The Legislature approved the phase-in of $226 million in corporate tax cuts in 2011. The cuts began in July and were projected to cost the state $100 million the first year, and will reduce revenues by $538.0 million in FY 2018 when all the provisions are fully implemented. Our lawless legislature robbed Peter to pay Paul.

As a result of these tax cuts, the Legislature’s Finance Advisory Committee estimates the state will end this budget year with a $520 million deficit, and up to $1 billion deficit in the coming fiscal 2016. “A party cannot by its own act place itself in a position to be unable to perform a contract, then plead that inability to perform as an excuse for nonperformance.”

Our lawless legislature should not be heard to plead poverty when it is responsible for actively undermining the fiscal and economic health of this state and its ability to perform.

What our lawless legislature has done out to be grounds for removal from office. You hold that power in your hands right now. Vote these lawless Tea-Publicans out of office. if you have not already voted an early ballot, do it NOW!