By Howard Fischer
Capitol Media Services
PHOENIX — State lawmakers acted illegally in trying to protect vouchers for some children by putting a "poison pill'' into Proposition 145 designed to kill any sort of reform to the Empowerment Scholarship Account program, a judge has ruled.
Maricopa County Superior Court Judge Joseph Kreamer said the Republican-controlled legislature is entitled to ask voters to adopt a constitutional amendment that would outlaw any future change in state laws that guarantee that children in military families can "bank'' their K-12 voucher dollars from year to year and save them up for college. That is designed to preempt one provision in Proposition 212, an initiative which seeks to make a series of major changes in laws governing vouchers.
But Kreamer said lawmakers cannot put that into a single take-it-or-leave-it measure in Prop. 145 that, if approved, would invalidate the entire Proposition 212 — and not just the parts dealing with vouchers for military families. That, the judge said, means Prop. 145 cannot be submitted to voters.
That, however, may not be the only problem with what GOP lawmakers are trying to put on the ballot. The judge also questioned the legality of any effort by lawmakers to preemptively kill future initiatives — and require courts to void entire otherwise-legal measures approved by voters just because one section runs afoul of a constitutional provision.
"It concerns key aspects of judicial review, legislative power, and the separation of power between those branches,'' Kreamer wrote.
The ruling is not the last word. A spokesman for House Speaker Steve Montenegro said there will be an appeal.
What's behind Prop.145 is the desire of voucher supporters to undermine efforts by the Arizona Education Association and Save Our Schools Arizona to get voters to put some constraints on who can get vouchers and how the money can be spent.
What prompted their efforts was the 2022 decision by lawmakers to take a program, which had been meant for students with special needs, and make the funds available to any student. That ballooned the program from about 12,000 to more than 100,000 students now getting vouchers which start at about $7,500 a year.
Initiative backers collected more than 420,000 signatures.
Montenegro offered supporters a deal: Drop your initiative drive and Republicans will not pursue another measure aimed at the AEA.
When that fell through, voucher supporters came up with a backup plan if they cannot defeat Prop 212 outright.
Seeking to capitalize on support for children whose parents are in the military or were killed in action, they crafted Prop 145 to put an amendment into the Arizona Constitution to forever protect the funding for those students. That, by itself, is not a problem according to Kreamer.
What is, he said, is language added by lawmakers to say that if Prop. 145 is adopted, all judges in Arizona would be required to entirely void any future measure that in any way affected those military families. That would wipe out all of Prop. 212 even if it was approved, including not just the anti-banking provisions but also a $150,000 cap on how much any family can earn and still qualify for one of those universal vouchers as well as a list of what are not reimbursable education expenses ranging from jewelry and lingerie to out-of-state theme parks.
That provision drew concern from the judge.
He pointed out that, generally speaking, if a single provision of any law is determined unconstitutional, then judges void that section — and that section only — and allow other, unrelated provisions to take effect. That is true whether the measure is enacted by the legislature or voters.
Not so here with Prop. 145.
"The 'no-severance' clause ... is unlike any severability provision that has ever been enacted in Arizona,'' Kreamer said.
"Instead of applying only to the bill being proposed, it would invalidate future legislation,'' the judge continued. And he said it affects constitutional provisions dealing with the power of the court "because it would potentially force the judiciary to invalidate laws that do not violate a constitutional right.''
But the ultimate bottom line from a legal perspective, Kreamer said, is that linking the two issues together — protection of vouchers for children in military families with completely voiding anything else that touches on the subject — violates requirements that constitutional amendments that propose multiple unrelated changes cannot be put into a single ballot measure.
"The clear import of this 'Separate Amendment Rule' is that voters must be allowed to express their separate opinion as to each proposed constitutional amendment,'' the judge wrote. And he said the protection of vouchers for military families is not sufficiently linked to the broader provision that would override any other measure that even touched on that subject.
There is another battle playing out — also in Kreamer's court — about Prop. 145.
Arizona law requires the attorney general to prepare an explanation of each ballot measure, as well as the effect of a "yes'' and a "no'' vote. And that goes on the ballot itself, meaning it is the last thing that people see when voting.
In this case, Attorney General Kris Mayes crafted language that says a vote for Prop. 145 and its protections for students from military families would "nullify'' any other measure that affects those voucher funds — in this case, Prop. 212. That drew a lawsuit from Montenegro and Senate President Warren Petersen who want Kreamer to order that explanation to be stripped from the ballot.
A hearing on that issue is set for next month — unless the Supreme Court sides with Kreamer in his new decision that Prop. 145 cannot go on the ballot, making the question of the ballot wording legally irrelevant.
