Judges return ballot measure descriptions to Legislative Council

Two more judges have rejected what they called attempts by Republican lawmakers to taint descriptions given to voters of ballot measures.

Maricopa County Superior Court Judge Sherry Stephens, an appointee of former Gov. Jane Dee Hull, said the explanation of some provisions of the Second Chances initiative approved by the GOP-dominated Legislative Council were “potentially misleading.” And she said some of what the panel put in the description of the crimes that might be affected “reflect a lack of neutrality and impartiality, are argumentative and violate (the law).”

Conversely, Stephens faulted the committee for leaving out some language she said is important for voters.

Meanwhile, Maricopa County Superior Court Judge John Hannah Jr., an appointee of former Gov. Janet Napolitano, made similar findings about how the Legislative Council wanted to explain a measure to voters containing multiple provisions dealing with health care and insurance. And he, too, ordered changes.

John Hannah

These are the second and third judges who have found fault with how the Republicans are — or are not — meeting their legal obligation to craft an explanation of ballot measures that by law “must be fair, neutral, and free from any misleading tendency.”

Earlier in the week Maricopa County Superior Court Judge Randall Warner ruled that several provisions of an explanation of a proposed income tax hike on the most wealthy have a “misleading tendency” and can add “partisan coloring” to what is being told to voters. But the Arizona Supreme Court still has to rule whether the Invest in Education measure itself can go before voters in November.

Arizona law requires the Legislative Council, composed of lawmakers from both parties and both chambers, to come up with language that is supposed to provide a shorthand explanation of what is in each initiative. That explanation is put into brochures which are mailed to homes of all registered voters.

The makeup of the panel is decided by the president of the Senate and the speaker of the House, both Republicans. And they set it up so that GOP members outnumber — and can outvote — Democrats.

The criminal justice measure would give judges more discretion in the sentences they can impose on those convicted of “nondangerous” offenses. It also would allow those already serving time for those offenses to be released after serving just 50 percent of their term, versus the current 85 percent figure that now exists in most cases.

Its text specifically defines ”nondangerous offenses” as anything other than first- and second-degree murder, certain child molestation and dangerous crimes against children, rape, and any offense determined by a judge or jury to be dangerous.

The Legislative Council, however, chose to add some examples of its own to its explanation, including aggravated domestic violence, molesting a child at least 15 years old, conspiracy to commit murder, and abuse of a vulnerable adult. Stephens said that was wrong on two fronts.

Sherry Stephens (Photo by Tom Tingle/POOL)

First, she said, it doesn’t explain to voters that these offenses actually can be classified as dangerous under the criminal code, depending both on the facts of a particular case and decisions made by prosecutors.

`Without providing that explanation, use of these examples is potentially misleading due to the omission of significant contextual information,” Stephens wrote. And she said that in picking those specific examples the panel was not being impartial and was being “argumentative.”

Stephens said there was nothing wrong with lawmakers putting a warning of sorts into the explanation that the Arizona Constitution prohibits the legislature from repealing what voters have approved and allowing them to make changes only with a three-fourths vote and only if they “further the purpose” of the underlying initiative.

But the judge said they failed to point out there are other ways to rescind or alter voter-approved measures, including either lawmakers sending it back to the ballot or voters themselves seeking a change. So she ruled that information, too, has to be given to voters.

Hannah found identical fault with a measure proposed by Healthcare Rising.

It would provide hospital workers with a 20 percent pay hike over four years, prohibit discrimination by insurers against people with pre-existing health conditions, bar “surprise” medical bills from out-of-network doctors, and impose new infection standards on hospitals.

Here, too, Hannah said lawmakers only partly described how voter-approved measure can be altered.

The judge also faulted legislators for adding what he called “argumentative” and “inaccurate” language.

That additional verbiage sought to tell voters that there already are state and federal laws protecting against discrimination based on pre-existing conditions.

But the federal law is the Affordable Care Act, which Republicans are trying to have voided by the U.S. Supreme Court. And there are questions about whether a state statute enacted earlier this year to fill in if that happens provides as broad a protection as would the initiative.