Convicted felon and former Arizona Governor Fife Symington, joined a group of politicians and business organizations, on Tuesday, in the filing in Arizona Supreme Court of an Amici Curiae brief in support of Governor Brewer’s Petition for Review in the Medicaid Expanion lawsuit.
Steve Pierce, Anna Tovar, Leah Landrum Taylor, Bob Worsley, Bob Robson, Heather Carter, Chad Campbell, Lela Alston, Eric Meyer, Kate Brophy Mcgee, Douglas Coleman, Jeff Dial, Debbie Mccune Davis, Ethan Orr, Frank Pratt, T.J. Shope, Victoria Steele, Martin Quezada, Bruce Wheeler, Greater Phoenix Leadership, Southern Arizona Leadership Council, Arizona Chamber of Commerce and Industry, and the Greater Phoenix Chamber of Commerce signed-on in support of the brief.
In May, Governor Brewer and AHCCCS Director Tom Betlach petitioned the state Supreme Court to deny legislator plaintiffs, who voted against the governor’s Obamacare expansion plan during the 2013 legislative session, their day in court.
The Amici Curiae brief being filed urges the Court to grant the governor’s Petition and reverse the appellate opinion that found the Legislators have standing.
In April 2014, Arizona State Court of Appeals Acting Presiding Judge John C. Gemmill delivered the opinion of the Court, in which Judge Randall M. Howe and Judge Peter B. Swann joined in finding that thirty-six members of the Arizona Legislature have standing in their case challenging the constitutionality of “Arizona’s expanded Medicaid program.”
At the time of the ruling, Representative Adam Kwasman, who fought against Brewercare; the largest expansion of the federal government in the history of Arizona said, “ObamaCare in Arizona was illegally installed, as it did not meet the 2/3 threshold to raise taxes. I’m confident freedom will ultimately win the day.”
The judges found, “we conclude that Article 9, Section 22(D) does not grant sole authority to the legislature to decide when a supermajority vote is required to increase existing taxes or impose new taxes. Accordingly, the trial court erred in holding that the legislature alone determines whether a bill must be passed by a two-thirds supermajority vote of each chamber in accordance with Article 9, Section 22.”
The Court rejected the argument that the legislature has the “sole power to dictate when and if a bill is subject to passage by a two-thirds supermajority under the Arizona Constitution. Rather, subsection (D) requires simply that, if a bill imposes measures raising revenues of the type listed in subsection (B), “a separate provision” must be added to the bill’s language that denotes that the bill must be enacted in accordance with subsection (A)’s two-thirds supermajority requirement.”
The Court offered a hypothetical as explanation, “A hypothetical example is instructive here. If the legislature considered a bill that would increase state revenues by raising the state income tax rates, such a bill would presumably fall within the purview of Article 9, Section 22(A) and (B). Even if the legislature did not enact a “separate provision describing the requirements for enactment prescribed by this section” as subsection (D) requires, such an omission would not defeat the constitution’s requirement that any bill raising the state income tax rates be passed by a two-thirds supermajority of each legislative chamber.”
Last year, Governor Brewer and the handful of republican lawmakers, with the assistance of all of the Democrat Caucus members, rammed though HB 2010, which was passed in both chambers of the Arizona legislature by a simple majority vote and signed into law by the Governor in June 2013. The law authorized the director of AHCCCS to “establish, administer and collect an assessment on hospital revenues, discharges or bed days for the purpose of funding the nonfederal share of the costs,” otherwise known as Brewercare.
The lawmakers challenged the law based on the nature of the “assessment.” The lawmakers contended that the bill imposed a new tax on hospitals as a funding mechanism for the expansion of Arizona’s Medicaid program. As a result, the bill was subject to passage by a two- thirds supermajority of each legislative chamber in accordance with Article 9, Section 22 of the Arizona Constitution, according to the plaintiffs.
The Governor challenged the lawmakers’ suit on the basis that they lacked standing. Brewer’s attorneys argued that the Legislature is the only authority to decide when a bill is subject to passage by a two-thirds supermajority. Arizona Superior Court Judge Kathleen Cooper Judge accepted Brewer’s argument and dismissed the lawmaker’s complaint. The lawmakers appealed.
The Arizona State Court of Appeals found:
• The trial court ruled that the Legislature has the power to decide whether a bill must be passed by a two-thirds supermajority of both legislative chambers and that Plaintiffs therefore lack standing to bring this constitutional challenge to HB 2010.
• Although standing questions are usually resolved before substantive questions, the legal basis for the trial court’s ruling compels us to review its substantive ruling as a predicate to our review of the standing issue. We do not, however, reach the ultimate constitutional question of whether HB 2010 was subject to the requirements of Article 9, Section 22 of the Arizona Constitution.
• Began de novo review by first addressing the trial court’s interpretation of Article 9, Section 22(D) of the Arizona Constitution.
• An act that provides for a net increase in state revenues, as described in subsection B is effective on the affirmative vote of two-thirds of the members of each house of the legislature. If the act receives such an affirmative vote, it becomes effective immediately on the signature of the governor as provided by article IV, part 1, section 1. If the governor vetoes the measure, it shall not become effective unless it is approved by an affirmative vote of three-fourths of the members of each house of the legislature.
• The requirements of this section apply to any act that provides for a net increase in state revenues in the form of:
1. The imposition of any new tax.
2. An increase in a tax rate or rates.
3. A reduction or elimination of a tax deduction, exemption, exclusion, credit or other tax exemption feature in computing tax liability.
4. An increase in a statutorily prescribed state fee or assessment or an increase in a statutorily prescribed maximum limit for an administratively set fee.
5. The imposition of any new state fee or assessment or the authorization of any new administratively set fee.
6. The elimination of an exemption from a statutorily prescribed state fee or assessment.
7. A change in the allocation among the state, counties or cities of Arizona transaction privilege, severance, jet fuel and use, rental occupancy, or other taxes.
8. Any combination of the elements described in paragraphs 1 through 7.
(C) This section does not apply to:
1. The effects of inflation, increasing assessed valuation or any other similar effect that increases state revenue but is not caused by an affirmative act of the legislature.
2. Fees and assessments that are authorized by statute, but are not prescribed by formula, amount or limit, and are set by a state officer or agency.
3. Taxes, fees or assessments that are imposed by counties, cities, towns and other political subdivisions of this state. (D) Each act to which this section applies shall include a separate provision describing the requirements for enactment prescribed by this section.
• In dismissing Plaintiffs’ complaint, the trial court held that “[w]hether a bill is subject to [Article 9, Section 22] is determined by the Legislature itself,” evidently relying on Defendants’ argument that subsection (D) granted such power to the Legislature. Defendants urge this court to affirm that holding, arguing that whether to include language in a bill pursuant to subsection (D) is an “official decision of each chamber” that falls under the purview of Article 4, Part 2, Section 8 of the Arizona Constitution, which grants each legislative chamber the power to “determine its own rules of procedure.” Essentially, Defendants argue that whether a bill must be passed in accordance with Article 9, Section 22 is a political question not reviewable by the courts.
• Generally, political questions “involve decisions that the constitution commits to one of the political branches of government and raise issues not susceptible to judicial resolution according to discoverable and manageable standards.”
• The manner in which the legislature conducts its business is usually a political question.
• In this situation, however, the Arizona Constitution imposes a “discoverable and manageable standard” — namely, that a bill providing “for a net increase in state revenues,” as described in subsection (B) of Article 9, Section 22 and not excluded by subsection (C), must be passed by a supermajority of each legislative chamber in accordance with subsection (A).
• The Court rejected the argument that Article 9, Section 22(D) grants the legislature sole power to dictate when and if a bill is subject to passage by a two-thirds supermajority under the Arizona Constitution. Rather, subsection (D) requires simply that, if a bill imposes measures raising revenues of the type listed in subsection (B), “a separate provision” must be added to the bill’s language that denotes that the bill must be enacted in accordance with subsection (A)’s two-thirds supermajority requirement.
• The Court reached its conclusion because the plain language of Article 9, Section 22(A)-(C) reveals that Section 22 is a limitation on the legislature’s power to pass certain revenue raising measures. To interpret subsection (D) as giving a bare majority in each chamber of the legislature the authority to determine when a bill must be passed by a supermajority eliminates Article 9, Section 22’s ability to act as a limiting provision on the legislature’s power.
• The absence of the required “separate provision” may mean that a majority of legislators did not decide that the constitutional supermajority vote was required, but subsection (D) does not bestow upon the legislature the sole power to decide whether a supermajority vote is mandated. Subsection (D)’s meaning must be determined in light of subsection (A)’s unambiguous requirements. Even if subsection (D)’s meaning — in isolation — may not be clear, the four subsections must be construed together to achieve the intended effect of the language and requirements of Section 22 as a whole.
• Subsection (D) cannot vitiate the legislature’s obligation to follow the requirements established by subsection (A) when applicable.
• For these reasons, we conclude that Article 9, Section 22(D) does not grant sole authority to the legislature to decide when a supermajority vote is required to increase existing taxes or impose new taxes. Accordingly, the trial court erred in holding that the legislature alone determines whether a bill must be passed by a two-thirds supermajority vote of each chamber in accordance with Article 9, Section 22.