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Arizona Supreme Court says Legislature violated the constitution with last-minute bills

By Ben Giles
Howard Fischer/Capitol Media Services
Published: Friday, January 7, 2022 - 9:44am
Updated: Friday, January 7, 2022 - 4:15pm

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Arizona Supreme Court building
Arizona Supreme Court
Arizona Supreme Court building.

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.

The ruling also brings an end to how legislative leaders corral the votes for certain controversial items.

Individual lawmakers in the majority party often 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.

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 any lawmaker 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 Senate Bill 1819, labeled as "Appropriating monies; relating to state budget procedures.'' Justice John Lopez, writing for the unanimous court, noted the bill “contains 52 sections and spans approximately thirty distinct subjects.” 

Paul Bender, a constitutional law professor at Arizona State University, said the court sent a message that lawmakers can no longer adopt spending plans by forcing legislators into all-or-nothing situations.

“The Legislature has to watch out and not put things together that don't have a majority vote for each one in order to get a majority that doesn't exist,” Bender said.

That need to "buy'' votes for the budget by packaging together policy issues is enhanced by the one-vote majorities held by Republicans in both the House and Senate. A single lawmaker can thwart something desired 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).

House Speaker Rusty Bowers (R-Mesa) said the ruling now gives him and Fann a way to push back.

"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.''

That could be 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.

"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.

"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-aMmole, 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, Bolding 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.

Bender described the opinion as a rebuke of Gov. Doug Ducey, who has appointed most of the justices on the Supreme Court. The justices' decision upheld the ruling of a lower court judge, who Ducey decried through a spokesman as a "rogue judge interfering with the authority and processes of another branch of government."

"This case implicates our court's core constitutional authority and duty to ensure that the Arizona Constitution is given full force and effect,'' wrote Lopez. "The responsibility of determining whether the legislature has followed constitutional mandates that expressly govern its activities is given to the courts — not the Legislature.''

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