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AZ high court weighs ‘legislative prerogative,’ state shutdown

A crucial element of the tense budget showdown between Governor Jan Brewer and the Legislature’s Republican leadership was argued in front of the Arizona Supreme Court this morning, but right now it’s unclear whether the court will choose to enter the political fight.

Brewer has asked the court to command the Legislature to forward to her a series of fiscal 2010 budget bills that have passed through both the House and Senate, claiming immediate action is necessary to avoid the possibility of having to shut down state services by July 1.

But David Cantelme, an attorney for Senate President Bob Burns and House Speaker Kirk Adams, claimed the Legislature’s decision on when to forward bills to a sitting governor is a “legislative prerogative” that is outside the court’s discretion.

At heart of the issue is a constitutional provision mandating that approved bills be sent to the governor. But the Arizona Constitution stops short of designating a specific timeframe that must be met.

Joseph Kanefield, the governor’s chief counsel, argued that the Legislature’s decision to withhold the 2010 budget package ignores the formality of the legislative process, and that the looming end of the fiscal year demands court intervention.

The Legislature’s budget was approved June 4, and since then it has remained in the Senate Secretary’s Office. Most Capitol observers believe the budget would be immediately vetoed upon arrival on the governor’s desk.

That sentiment weighed heavily on the questions thrown at Kanefield by the court’s justices, who throughout much of the hearing sought answers as to why, whether and how the court would step into the stalemate.

Justice Scott Bales asked Kanefield why the court would intervene; given the fact the governor could simply announce her intention to veto the bills.

Justice Andrew Hurwitz questioned what real effect an Arizona Supreme Court command to the Legislature would have on the budget process, as lawmakers by constitutional mandate have to submit a budget proposal by the end of the month anyway.

The justice also said the mere presence of a court challenge of the Legislature’s refusal to transmit the bills indicated a veto was imminent.

Kanefield responded the by saying the continued withholding of the budget bills would erode the governor’s authority to consider bills for a full five days before taking official action.

Justices sought Kanefield’s input on whether the governor wants the court to issue an immediate order to legislative leadership to submit the bills or rather establish some sort of a test to determine what constitutes a “reasonable time” for bills to be turned over.

Kanefield said the goal is an immediate order stating that the nature of the bills, considering they are appropriations bills, demanded action. “It is different and deserving of special treatment,” he said.
Cantelme urged justices to consider the “political advantage” that would be afforded to Brewer if the court demanded the bills to be transmitted immediately. But he was interrupted by Justice Scott Bales, who asked “Isn’t that why the Legislature is holding them?”

The attorney claimed lawmakers, and not the governor or the courts, have the authority to determine when to forward bills to the governor for consideration.

And time remains, Cantelme said, for the bills to be rescinded or reconsidered if a senator could gather the support of a simple majority in the 30-member body.

“Any member of the Senate could upset the apple cart if they could command 16 votes,” he said, adding the governor’s petition for special action amounts to a request for an unwarranted intrusion into a political squabble.

The decision to withhold the approved legislation does not impede the governor’s veto authority, but it may create political difficulties that are not subject to court intervention, Cantelme said.

Justices soon crept into Cantelme’s line of reasoning, asking whether the framers of the state Constitution intended to allow a Senate president or a House speaker the authority to unilaterally frustrate the will of the Legislature by simply refusing to transmit approved bills for a governor’s consideration.

The attorney countered that bills can be held until very late in a legislative session for a variety of reasons, including pressuring a governor or even gaining leverage over fellow lawmakers.

“One of the reasons it happens is to cramp or cabin the governor’s veto,” he said. “That’s the Legislature’s prerogative.”

Kanefield, who reserved several minutes of his allotted 30 minutes for rebuttal, told justices that the fact the House has withheld only a “handful” of bills from the governor during the last 30 years demonstrates that Brewer’s argument is correct.

Ruling against Brewer, who claims legislative leadership is impeding on her authority, would unlawfully empower a House Speaker or Senate President to nullify the “express vote and will of the peoples’ representatives.”

After the hearing, Brewer said she took encouragement from lines of questioning and subsequent answers that she felt illustrated her reading of the state Constitution. She reiterated her belief that the Constitution requires lawmakers to send her the budget bills, drawing on her 14 years experience in the Legislature to provide examples.

“I always believed that when people voted on the bill that when it went back to the house of origination that it was transmitted,” she said. “I believe that’s what should’ve happened. It is important that they all agreed on that budget, they all voted for that budget. Then it was to be presented to the governor, and when it’s presented to the governor, that’s when she or he then participates.”

Burns and Adams left immediately after the hearing ended and did not comment on the proceedings or answer questions. Sen. Russell Pearce, however, said it would be inappropriate for the Supreme Court to interfere with the legislative process, just as it would be for the Legislature to tell the justices how to rule on a case.

“There’s a process here. … My guess is listening to the court – and again, I don’t know if they showed their hand clearly, but I think they’re respectful of that process,” Pearce said. “I think the Constitution has to be honored here, and I don’t think the Constitution dictates when they send them over. It’s pretty clear. Had (the framers) wanted that, they would’ve stated that.”

When asked how Burns should respond if the court rules against him, Pearce said, “I think the Constitution trumps it, and I think the president ought to hold firm. And I think if they rule in that way, I would have a concern.”

Brewer said budget negotiations would not be halted while she and the Legislature await the court’s ruling, and said she planned to meet with lawmakers again later in the day.

“We are meeting again this afternoon and moving forward. Certainly it is imperative that we come to some conclusion, some agreement for the people of Arizona,” she said.

The court gave no indication as to when it would rule on whether to accept Brewer’s petition for special action. If jurisdiction is accepted, the court is likely to issue a ruling on the matter.

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