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Court: Legislators can’t sue to block Medicaid expansion

Arizona Gov. Jan Brewer holds up the contentious Medicaid expansion bill after signing it into law. (Photo by Evan Wyloge/Arizona Capitol Times)

Arizona Gov. Jan Brewer holds up the contentious Medicaid expansion bill after signing it into law. (Photo by Evan Wyloge/Arizona Capitol Times)

A lawsuit challenging Arizona Gov. Jan Brewer’s Medicaid expansion plan that was filed by fellow Republicans in the state Legislature was dismissed in a ruling released Saturday, handing Brewer a major victory in her battle against conservative members of her own party.

Maricopa County Superior Court Judge Katherine Cooper agreed with Brewer that the lawmakers challenging the law don’t have the right to sue, saying their argument that a hospital assessment included in House Bill 2010 that passed in June required a supermajority vote of the Legislature under Arizona’s Constitution was incorrect.

Cooper’s ruling said it is the Legislature itself that determines if a 2/3 vote is required under a voter-approved constitutional amendment called Proposition 108.

House Speaker Andy Tobin, one of the challengers, vowed to take the case to the Arizona Supreme Court.

He said if Cooper’s ruling stands, it sets a bad precedent: It would allow a majority of lawmakers to ignore the voter-mandated constitutional requirement for a two-thirds on tax hikes without fear of being challenged.

But Brewer spokesman Andrew Wilder called the court ruling “a huge victory.”

“Judge Cooper’s ruling is thoughtful and legally sound,” Wilder said in a statement. “As a result, the state can move forward with implementing the Governor’s Medicaid Restoration Plan without further distraction of litigation, thereby restoring cost-effective health care to tens of thousands of Arizonans through AHCCCS, and honoring the will of voters.

“The governor hopes this will put an end to the case and she looks forward to continuing to work with lawmakers on other important state business in the coming weeks.”

That’s not likely. The suit was filed by the Goldwater Institute on behalf of 36 Republican legislators and several citizens, and Goldwater issued a statement saying it planned to appeal.

“Unfortunately, this ruling greatly damages Arizona’s critically important voter-enacted constitutional protection requiring a two-thirds legislative supermajority for all new taxes, even when the government is responding to a ‘crisis or emergency’ or a program ‘for the poor.’” Goldwater attorney Christina Sandefur said. “If this decision stands, it would enable a simple majority of legislators to vote to ignore a constitutional supermajority requirement when politically convenient, shielding that vote from legal challenge.”

But Cooper said it was not for the courts to second guess the decision by the majority of lawmakers to conclude this was not a tax and, therefore, there was no need for a two-thirds vote.

“Plaintiffs are a minority group within the Legislature who lost a battle,”’ the judge wrote. “They do not claim a concrete, individual injury.’”

She also said that any legal move by lawmakers to overturn a vote of the House and Senate would have to be authorized by the entire Legislature, something that did not – and could not – happen here because a majority of lawmakers supported expansion.

Tobin said the ruling makes no sense.

“My argument is, if you have a two-thirds (vote) requirement, how can you not identify that one-third would have standing?”’ he asked.

Tobin said the whole purpose behind the voter-approved 1992 constitutional amendment requiring a two-thirds margin in both the House and Senate for any increase in state revenues was to prevent a simple majority from hiking taxes. He said that’s exactly what happened here.

And that, Tobin said, should allow anyone on the losing side of that vote to sue when a tax is approved without a two-thirds vote. Otherwise, he argued, the majority would be able to ignore the requirement at will.

Wilder did not dispute that basic point.

“It’s the Legislature that makes that decision if there needs to be that (two-thirds) vote,”’ he said.

The hospital assessment is expected to collect $256 million in the state’s 2015 budget year to pay the state’s share of expanding Medicaid to about 300,000 people. Those to be covered include people earning between 100 percent and 138 percent of the federal poverty level and childless adults making less than that who lost optional coverage provided by Arizona when the state went through a budget crisis during the Great Recession.

Coverage began Jan. 1, and the most recent figures from the state’ Medicaid program show about 100,000 people have gained coverage so far.

Hospitals strongly backed the assessment because they expect to see a much bigger reduction in the cost of treating uninsured patients.

Brewer is one of only a handful of Republican governors who embraced Medicaid expansion, a key part of President Barack Obama’s health care overhaul law. In all, 25 states plus Washington, D.C., are moving ahead with the expansion, while 19 states have turned it down. Another six states are weighing options.

Brewer spent months trying to get Republicans who control both chambers to support Medicaid expansion. She convinced a handful of Republicans to join all minority Democrats and put together a majority that supported the move, but leaders refused to let it come to a vote. She finally rammed it through in June after calling a special session to get around recalcitrant GOP House and Senate leaders.

Howard Fischer/Capitol Media Services contributed to this report.


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