Supporters of Gov. Jan Brewer’s Medicaid expansion plan urged the Arizona Supreme Court to reverse an appellate court’s ruling that a group of Republican lawmakers has standing to challenge the constitutionality of the program.
In an amicus brief, Medicaid expansion supporters argued the Court of Appeals ruling that granted standing to 36 GOP legislators violated judicial precedent and would open the door to many legal challenges from lawmakers and others trying to reverse their losses in political battles. The lawsuit alleges that the hospital assessment that funds the Medicaid expansion is a tax that should have been subject to a two-thirds vote under Proposition 108.
The brief was filed by nineteen lawmakers who were part of the bipartisan coalition that voted to pass the expansion plan. They were joined by the Arizona Chamber of Commerce and Industry, Greater Phoenix Chamber of Commerce, Greater Phoenix Leadership, Southern Arizona Leadership Conference and former Gov. Fife Symington.
Medicaid expansion supporters argued that only the people or entities that pay the assessment – in this case, the hospitals – have standing to file a lawsuit under Prop. 108. Just because the hospitals have chosen not to doesn’t mean that others should have standing instead, wrote attorney Joe Kanefield.
“Standing is not conferred upon the Legislator Plaintiffs simply because the law might go unchallenged immediately or indefinitely by hospitals, who are the only entities with standing,” Kanefield wrote.
Under HB2010, the 2013 bill that authorized the expansion, the state uses revenue from the assessment to pay for its share of an expansion of Medicaid coverage, which triggers substantial federal matching funds. But every hospital system in Arizona that is subject to the assessment gets back more federal money than it loses under the assessment, making it extremely unlikely that any hospital would sue.
Kanefield argued that the Court of Appeals’ decision contradicted the Arizona Supreme Court’s landmark ruling in Bennett v. Napolitano, a 2003 case in which the court rejected standing for several individual lawmakers who challenged the constitutionality of then-Gov. Janet Napolitano’s line-item vetoes. In that ruling, the court said it was hesitant to referee political disputes between the executive and legislative branches.
“The opinion not only is wholly unprecedented but also, if allowed to stand, will inevitably lead to all manner of lawsuits by outvoted legislators claiming that they too were denied ‘a constitutional right to have their votes count by a certain amount,’” Kanefield wrote, citing the Court of Appeals ruling.
Kanefield warned that the potential precedent would lead to suits from lawmakers on the losing side of legislative battles challenging bills over other procedural issues such as emergency clauses, the Voter Protection Act, germaneness and special legislation, among others.
The Court of Appeals allowed the 36 legislators’ challenge to move forward on the grounds that if HB2010 required a two-thirds vote, then their votes were unconstitutionally overridden because their votes would have been enough to defeat it. The bill passed with a simple majority.
The Arizona Supreme Court will decide on Aug. 26 whether to accept the case.