Update: Court Hears Oral Argument On Arizona Legislature’s Abuse of State Budget Process To Enact Pet Policy Bills

Update on Update On State Lawsuits Over Anti-Mask Orders (excerpt):

[Background]: Mask mandates, election changes don’t belong in budget bill, lawsuit claims:

Mask mandates, changes to how elections are run and limits on how racial issues can be discussed in Arizona classrooms all were stuffed into the state budget in June.

Now, a coalition of education and civic groups is challenging the long-standing legislative practice of adding policy to budget bills. It is asking a court to declare the practice unconstitutional and is seeking immediate relief to keep the policies contained in four of the 11 budget bills from becoming law.

If successful, it would overturn the mask mandates that are at the center of heated debates in school districts statewide, block a number of new [GQP Jim Crow 2.0 voter suppression laws] and — more broadly — create pared-down budget bills [i.e., restore the constitutional budget appropriations process.]

“Never before has the legislature so ignored the normal process and procedure for enacting laws as they did this session,” the plaintiffs stated in the lawsuit, filed Thursday in Maricopa County Superior Court. “It is up to the courts to enforce the dictates of the Arizona Constitution.”

Another issue: The mask mandates in question apply to public district and charter schools but not private schools, violating equal-protection rights for students, the lawsuit said.

Pet policies added to budget bills

The lawsuit cites numerous examples of Republican lawmakers demanding that certain pet measures be included in the budget or they would withhold their votes, imperiling a $1.5 billion tax cut championed by Gov. Doug Ducey and many Republicans.

Key among the demands were mandates that barred school districts, cities and towns from imposing mask requirements, as well as limits on the ability of universities and community colleges to require vaccines and masks.

But the suit is much broader than a challenge to the policies related to COVID-19 mitigation, said David Lujan, president and CEO of the Children’s Action Alliance, one of the plaintiffs in the lawsuit.

“The mask issue at this moment is the most significant because we are seeing a crisis right now and our schools are feeling helpless,” Lujan said. “That issue was put in there to get a huge tax cut for the rich.”

But the bigger issue is lawmakers ignored constitutional requirements that bills stick to a single subject and that their title reflects what is in the bill. That happened not only with mask mandates, but with election procedures and limitations on instruction in critical race theory, the lawsuit stated.

With Republicans holding a one-vote margin in both the House and Senate, any defection by a Republican would derail the budget and its historic tax cut. That gave lawmakers outsize power to make demands in the closing days of the legislative session.

[T]he budget bills violated a constitutional requirement that their title reflect what is in them by adding unrelated policy, the lawsuit stated.

For example, Senate Bill 1819’s title said it appropriated money related to state government procedures.

But the bill also contained provisions that required the Secretary of State to hand over the statewide voter-registration list to any entity designated by the Legislature, outlined “fraud countermeasures” for paper ballots, and included measures for dog-racing permitting, among other things.

The bill also violates the single-subject rule of the state constitution by adding what the lawsuit calls a “hodgepodge” of policy issues into a budget bill.

Attorney Roopali Desai, who is representing the plaintiffs, said this last-minute practice deprives the public of knowing what is in a bill and hampers their ability to weigh in on it.

Note: Because the budget is negotiated in secret between Republican legislative leaders and the governor, rather than hashed out in committee hearings, there is no public input into the budget and no transparency in the budget process. Republicans do not want the public to weigh in the budget, and have cut the public out of the process entirely (but stakeholders like the Arizona Chamber of Commerce and Industry corporate lobbyists are invited into these secret discussions).

“They pushed the envelope before,” she said of lawmakers, “but this is unprecedented. The courts have to weigh in, or there’s no telling what happens in the future.”

Why bother with public hearings and committee meetings, Desai asked, if a policy simply could be dropped into a budget bill in the final days of a legislative session?

Um, this is exactly what authoritarian Republicans have been doing for years.

Not every Republican is in lockstep with this GQP autocracy:

Sen. Paul Boyer, R-Glendale, questioned how the Legislature would defend itself when, in his view, the process so clearly violates the state Constitution.

“I’m not an attorney, but it seems cut and dried,” he said. “What I find especially egregious were all the bills that died and came back in the budget.”

Those bills, including mask mandates (many of which he supported) and penalties for curriculum that some deem teaches critical race theory, should be able to withstand the normal committee and public-hearing process, he said. If they can’t pass there, it’s not proper to slide them into the budget at the last minute, he said.

You are correct, sir!

The lawsuit was filed on behalf of the Arizona School Boards Association, which represents the governing boards of nearly all the school districts in the state; the Arizona Education Association, which represents teachers and other school workers; nonprofits Children’s Action Alliance and Arizona Advocacy Network; and 11 individuals. They include two members of the Phoenix Union High School District governing board, teachers, university instructors and parents.

The suit asks the court to declare four budget-related bills unconstitutional, and seeks an injunction blocking the four bills from becoming law.

The case has been assigned to Maricopa County Superior Court Judge Katherine Cooper. A hearing date has not yet been set.

Note: Judge Cooper was appointed to the bench by Governor Jan Brewer in 2011. Judge Cooper ruled in 2014 that Arizona had short-changed its schools by $317 million and must pay them back. This is what led to Gov. Ducey’s Prop 123 and the raiding of Arizona’s education  trust fund as a means of avoiding paying back the school districts for the legislatures theft of education funds. Unfortunately, the school districts went along with it, to their detriment.

On Monday, Judge Cooper heard oral argument. Cronkite News reports, Ban on school mask mandates violates Constitution’s ‘single-subject’ rule, opponents argue:

A coalition of educators and parents is asking a judge to scrap the Legislature’s ban on school mask mandates before it takes effect on Sept. 29.

Maricopa County Judge Katherine Cooper heard arguments from both sides in a hearing Monday afternoon to consider the constitutionality of the mask mandate ban. If the lawsuit is successful, local governments and school districts will be able to make their own decisions regarding mask and vaccine mandates for staff and students.

According to the complaint filed on behalf of school masking advocates and others, the Legislature passed several budget reconciliation bills with the ban on mask and vaccine mandates for schools and public universities “unconstitutionally” hidden within. Article 4, part 2, section 13 of Arizona’s Constitution says legislation can only focus on one subject — the single-subject rule — and that subject “must be properly addressed in the title of the act.”

“Unless the laws are declared unconstitutional and enjoined, a great many children in Arizona will get COVID-19,” plaintiffs’ attorney Roopali Desai told the judge. “This case is not about the substance of policies of various provisions we’ve challenged but present a textbook example of legislative enactments that violate the Constitution’s single-subject and title requirements.”

Defense attorney Patrick Irvine, who’s representing the state, said budget reconciliation bills are necessary to implement the budget and are up to the Legislature to determine.

More GQP authoritarianism:

Quite the argument: The Legislature has supremacy over the constitution and its judgment can't be evaluated by the courts.

So much for separation of powers. https://t.co/ooO2CGhS08

— Jim Small (@JimSmall) September 13, 2021

“Part of the argument that’s made is that there has to be a direct connection between the budget reconciliation bill and the feed bill,” he said. “To say that the budget reconciliation bill provision has to be directly related to the general appropriation is not the standard.”

The lawsuit questions four bills in particular: House Bill 2898, Senate Bills 1824 and 1825, which relate to health and education, according to the complaint. The fourth, Senate Bill 1819, focuses on budget procedures and reconciliation, which the lawsuit says are a violation of the single-subject rule.

Irvine said that these bills have to have some connection with the general idea or topic of the bill and that the bills in question meet that requirement.

Chris Kotterman, the Arizona School Boards Association director of governmental relations, said this lawsuit is about more than mask mandates but rather about school and local governing boards taking back control to make decisions best suited to their communities. The association is among the plaintiffs in the suit.

“We were pleasantly surprised that a number of people seem to agree with us more strongly than we initially thought,” Kotterman said. “Voters agree that governing boards should be able to make their own decisions, and that’s really where we think the strength is.”

A statewide telephone survey in late August, funded by the association and the Arizona Public Health Association, found that a majority of the 400 registered voters surveyed support mask mandates in schools, business and government buildings.

About 57% of respondents said masks should be required while in local government or school buildings with 53% of people surveyed saying local governments, school districts and charter schools should be able to make their own rules regarding mask mandates.

When surveyed about the ban on mask mandates, nearly 60% of people opposed the law, with 61% saying they oppose Gov. Doug Ducey’s $163 million grant to schools and districts that offer in-person learning without enforcing a mask mandate.

Lupita Hightower, the superintendent for the Tolleson Elementary School District, said most parents, school boards and superintendents want to be able to make decisions regarding mask and vaccination mandates based on what they’re seeing.

“We want to be able to make decisions that are based on the local context of the community,” Hightower said. “Not being able to have that local control as a governing board and as superintendents is difficult.”

The Tolleson district does not mandate masks or vaccines for students or employees. In a survey conducted by the school last year, about 75% of teachers and staff answered that they had been vaccinated. In the month that school has been in session, she said only three adults have tested positive for COVID-19.

Hightower said this lawsuit’s success would be a huge win for democracy.

It would reverse an anti-democratic secretive budget process that has been abused by Republicans since the administration of Governor J. Fife Symington III in the 1990s. Put the budget process back in the appropriations committees with substantive bills and public hearings, and committee votes on those bills. You know, democracy. No more of this eleventh hour springing a budget on the legislature just before sine die crap with no committee hearings, and no public hearings, and no genuine debate. You know, lawless GQP authoritarianism.

“In our state, there have been bills that have been included in a budget package that do not have anything to do with the budget,” she said. “We want people to know that we really care about our students’ health and that we’re trying our best to keep our students in person and learning.”

Cooper is expected to rule on the lawsuit before Sept. 29.