Justices explain why Invest in Ed measure booted from ballot

Citing confusing language that could trip up voters, five of Arizona’s Supreme Court justices explained their decision to bar a citizen initiative to raise taxes for education in a ruling released Friday morning.

Vice Chief Justice Robert M. Brutinel, joined by justices John Pelander, Clint Bolick, Andrew Gould and John R. Lopez favored throwing the Invest In Ed initiative off the ballot, a decision that drew the ire of teachers and public school advocates throughout the state. Their explanation was penned anonymously — the ruling was issued “per curiam,” meaning no one author takes credit for the written opinion.

Those justices determined that the “description of the initiative’s principal provisions omitted material provisions and created a significant danger of confusion or unfairness to those who signed petitions to place the measure on the ballot.”

The key omissions included a failure to address the initiative’s impact on income tax indexing, a change that would affect all Arizona taxpayers, and a strict reading of the initiative’s effect on income tax rates for wealthy Arizonans.

Invest In Ed backers hoped to raise taxes on Arizona individuals earning more than $250,000 annually and households earning more than $500,000.

The opinion was exactly as Gov. Doug Ducey’s campaign staffers had predicted it would be, having told reporters back in August the decision was a 5-2 split with the same two justices dissenting. When two reporters revealed the information on a local TV news program, the governor and his campaign dismissed the information as a rumor that was presented to the reporters as such.

A representative from the Invest in Ed committee said the Supreme Court overstepped by striking the initiative from the ballot and release of the full opinion raised concerns about Arizona’s political system being “rigged” against voters.

Invest in Ed co-chairman Josh Buckley said his greatest concern with the ruling is that it gives the Republican-controlled Legislative Council major leeway in describing and interpreting ballot initiatives, regardless of its drafters’ intent.

In the opinion, a majority of the justices suggested that had the Invest in Ed language been submitted to the nonpartisan Legislative Council staff for review prior to volunteers circulating petitions, the staffers may have altered the language to a point that the initiative could have gone on the ballot.

But Buckley also said the appearance that Ducey’s campaign knew about the ruling before the general public is troubling.

“Leaks concerning the outcome of the Supreme Court vote, the identity of the dissenters and the timing of the opinion all raise concern about improper communications between the Court and outside interest groups,” he said in a statement.

Some have blamed the decision on Ducey and legislative Republicans boosting the size of the court from five justices to seven, allowing the governor to appoint to new justices, Gould and Gomez. But that maneuver had no effect on the outcome, which would have been a 3-2 decision without expansion.

“We greatly respect the initiative process, including the civic activism required to collect the signatures necessary to qualify a ballot measure, and we do not lightly disturb the fruits of such efforts,” the five justices wrote. “However, we must do so, as the Court has done in various prior circumstances, when essential requirements necessary to qualify a measure are not adequately followed.”

Chief Justice Scott Bales and Justice Ann Scott Timmer dissented, and each wrote opinions explaining their rationale.

The justices also avoided issuing a ruling on the constitutionality of strict compliance, and did not address a Maricopa County Superior Court ruling that the law is unconstitutional.

In responding to the opinion released Friday, Ducey spokesman Daniel Scarpinato doubled down on the campaign’s stance that they had no inside information on the ruling, and instead that they heard a rumor about the vote split.

Scarpinato referred the Arizona Capitol Times back to a statement issued more than a month ago in response to an Arizona Republic column questioning why Ducey’s campaign purported to know the vote split. The statement said Ducey did not know the vote, and that his campaign simply shared a rumor with reporters on background.

Carmen Forman contributed to this report.