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Penalties sought in ‘Flores’ suit sparks debate over leadership roles

Arizona Capitol Reports Staff//July 27, 2007//[read_meter]

Penalties sought in ‘Flores’ suit sparks debate over leadership roles

Arizona Capitol Reports Staff//July 27, 2007//[read_meter]

A request for fines in the Flores lawsuit has triggered a dispute over the role legislative leaders play in the suit as they defend a law approved in 2006 aimed at restructuring how the state teaches schoolchildren English.
Attorneys for House Speaker Jim Weiers and Senate President Tim Bee say a motion to impose fines was aimed not at the state or the Legislature, but at the pair of lawmakers as individuals. In a July 23 response, attorney David Cantelme writes such a move would be inappropriate because the legislators are not all-powerful and fining individual elected officials should be a last resort after all other remedies have been exhausted.
But public interest attorney Tim Hogan, who filed a July 6 motion in federal court seeking the fines, says the legislative leaders didn’t join the suit as individuals, but as representatives for the Legislature. As such, he said, the fines would be against the state, not the lawmakers themselves.
“Until they filed their response, I thought they represented the Legislature,” he said. “Apparently, they are whatever they want to be.”
Hogan sought the fines for contempt of court in reaction to the Legislature’s failure to adequately fund English language learner programs by the end of the recently completed legislative session, in accordance with a March 22 court order to do so.
He has asked for fines starting at $500,000 a day and escalating to $2 million a day. Federal Judge Raner Collins imposed similar fines against the state in 2006. Though the state accrued $21 million in fines before it passed H2064 [Laws 2006, Chapter 4], the fines were erased by an appeals court later that year.
In the March ruling, which came after an evidentiary hearing in January, Collins ruled H2064 did not comply with federal law and would not satisfy the lawsuit.
Cantelme argues that if Hogan truly meant for the state to be fined, he should have requested that. Instead, the public interest lawyer requested fines against the “Legislative-Intervenors,” which he says are only Bee and Weiers.
Further, he said, the court’s March order was aimed at the state, not the two lawmakers.
“The Court carefully tailored the Order to make the State of Arizona the object of its command…” Cantelme wrote. “A strict reading of the Order does not permit the Legislative-Intervenors to be held in contempt, because the Order did not command them specifically to do anything.”
Attorney: Two lawmakers only have 2 votes
Cantelme continues, arguing the two legislators only have one vote each and, without a majority of lawmakers, are unable to pass any legislation. Nor, he says, can the lawmakers make the governor sign a bill that reaches her desk.
But Hogan says the contention that Weiers and Bee are acting as individuals in the suit is “a little silly” because they have always been representing the Legislature, not themselves.
“Ultimately, the judge is going to have to decide who they are. Are they the Legislature or are they just two guys who work at 1700 West Washington≠” Hogan said. “If it’s the latter, what the hell are they doing in this case≠ That means we could have 90 intervenors, then.”
Legislative records seem to contradict Cantelme’s assertion that Weiers and Bee are not merely the designees for the House and Senate. On March 8, 2006, both chambers voted to allow their respective leader to represent the entire body in the Flores lawsuit.
Part of the motion made in the House was: “To [defend H2064] the House authorizes the Speaker to represent the interests of the House of Representatives and take all appropriate action on its behalf in any matter related to the Flores litigation, including acting jointly with the Senate President to act on behalf of the Legislature as a whole.”
The Senate made a similar motion authorizing its president to do the same.
Cantelme also argued against the sanctions on the grounds that it would be a waste of time and resources for the court to impose fines while an appeal of the court’s March ruling is pending in the 9th Circuit.

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