Arizona Supreme Court Rules on Constitutionality of Budget Bills
By Howard Fischer
Capitol Media Services
PHOENIX -- The Arizona Supreme Court on Thursday issued a broad ruling that will change forever how state budgets are adopted.
In a 17-page ruling, the justices said the way lawmakers have been piling unrelated issues into last-minute "budget reconciliation'' bills is unconstitutional.
They voided provisions of four budget-related bills because their legally required titles did not reflect what actually was in the measures. And they separately concluded that one of the bills, with 52 sections and 30 distinct subjects, also violated a separate constitutional ban on legislation dealing with more than one topic.
In doing so, the court reasserted its authority as the ultimate arbiter of what the other branches of government can and cannot do.
The justices said that they -- and not the legislature -- determine whether an act is constitutional. And in an often strongly-worded decision, they slapped down various arguments that lawmakers are entitled to wide latitude in deciding how to craft statutes and the budget.
But the real effect of the ruling is that it finally will bring to an end how legislative leaders corral the votes for certain controversial items. And that, in turn, could empower whichever party is in the minority.
What has happened until now is that individual lawmakers in the majority party threaten to withhold their votes for the entire budget unless they get some particular provision inserted. And often these are bills that could not get approved on their own.
This year's budget package is no exception. It is filled with items that either failed on their own or never even got a hearing but became must-have items for some lawmakers.
Among the examples is a ban on the teaching of so-called "critical race theory'' in public schools, a bill that never was voted on separately by either the House or Senate. But it wound up in legislation labeled
"K-12 education; budget reconciliation.''
That meant anyone who wanted what else was in that bill, which included changes in state aid to public schools, had to go along.
The justices said the situation was even more pronounced in SB 1819, labeled as "Appropriating monies; relating to state budget procedures.''
"SB 1819 contains 52 sections and spans approximately thirty distinct subjects, including matters ranging from dog racing, the lottery, voter registration, election integrity, the governor's emergency powers, the Board of Trustees' (of the Public Safety Personnel Retirement System) duties and powers, the definition of 'newspaper,' political contributions, management of the state capitol museum, and COVID-19,'' wrote Justice John Lopez for the unanimous court. And that in turn forced lawmakers into an all-or-nothing situation.
That need to "buy'' votes for the budget by including policy issues package is enhanced in situations like now where Republicans have just a one-vote majority in both the House and Senate, meaning a single lawmaker can thwart something desires by his or her GOP colleagues.
"There were a lot of things put into those budget reconciliation bills because we had so many members that said, 'I'm not on the budget unless I get X,' '' said Senate President Karen Fann, R-Prescott. More to the point, she said, they had leverage.
"After 171 days and no budget passed, and we're getting close to July 1 and the new fiscal year where departments need to be funded and everything else, yeah, we did pout stuff in there,'' she told Capitol Media Services.
House Speaker Rusty Bowers, R-Mesa, said the ruling now gives him and Fann some backing for their refusal to do that.
"It kind of helps us hopefully make the point that there are certain things you can't do,'' he told Capitol Media Services. "So, if that's what that decision says, it's good for me.''
The flip side, however, is it removes a bargaining chip that leadership has had until now to get the needed majority among Republicans for the budget.
"It's just going to cost me more,'' Bowers said. "I'm just going to have to go deal with somebody else.''
And that could mean getting the necessary votes from Democrats who have argued repeatedly that they have not been consulted on budget items because, until now, the Republicans have not needed their votes.
House Minority Leader Reginald Bolding, D-Laveen, said he welcomes the idea of greater Democratic influence on the annual spending package.
"My hope is this really is an opportunity to get back to what Arizona is trying to do,'' he told Capitol Media Services, pointing out that the partisan split in both the House and Senate is nearly 50-50.
"We've always taken a position as a caucus that we're 100% in favor of a bipartisan budget, a budget that includes both Democratic and Republican priorities,'' he said. "We just have not seen that the governor, the speaker or the president really operate that way.''
Fann, however, said it will still require some flexibility on the part of Democrats.
She said GOP lawmakers made it clear last year that the budget had to include some tax cuts for them to support the spending plan. But Fann said not a single Democrat was willing to even consider the issue.
"So that shut down those conversations,'' she said, leaving GOP leadership little choice but to agree to some of the demands to put non-budget items into the package.
"Had I had a few Democrats that would have come onboard with the budget, or even some of the budget items, when we wouldn't have had to play Whac-A-Mole, if you will, with the other members of putting things in there that really didn't belong in the budget,'' Fann said.
Bolding said the ruling also could curb some more radical ideas from becoming law -- or at least bring them to light.
Right now, he said, individual lawmakers are shielded from being held accountable for voting for a specific measure because it is buried in a more comprehensive budget bill.
"Republican members who don't support bad policy will now be forced to vote on the board for those bad policies,'' Bolding said. "And we'll see if they have the courage to vote against them -- or not.''
Thursday's decision is also consequential for the court's broad rejection of claims by lawmakers that they -- and not the justices -- get to decide whether what they do is constitutional.
"We reject this untenable proposition,'' wrote Lopez.
"This case implicates our court's core constitutional authority and duty to ensure that the Arizona Constitution is given full force and effect,'' he said. "The responsibility of determining whether the legislature has followed constitutional mandates that expressly govern its activities is given to the courts -- not the legislature.''
Lopez said it would be one thing if a dispute is over a political issue that is beyond the ability of the court to resolve.
In 2007, for example, the justices spurned a request by former state Rep. John Kromko, D-Tucson, to rule that a 39.1% hike in tuition at the state's three universities violated a constitutional requirement that instruction be "as nearly free as possible.'' Justice Andrew Hurwitz, who wrote, that decision, said judges are in no position to decide that questin.
"At best we would be substituting our subjective judgment of what is reasonable under all circumstances for that of the Board (of Regents) and the Legislature, the very branches of government to which our constitution entrusts this decision," he wrote.
Lopez, however, said this is different.
"Our review of the contested budget reconciliation bills' constitutionality does not equate to this court superintending the budget process, as the state claims,'' he said.
"Whether the legislature has complied with constitutional requirements depends on whether the final BRBs' language reflects a proper connection to the budget as understood by an outside reader,'' Lopez continued. "This matter falls within the purview of the courts because the issue here is not (ITALICS) what (ROMAN) the legislature decided but (ITALICS) how (ROMAN) it decided what it did.''
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