State lawmakers are not conceding they acted illegally in the way they approved a ban on mask mandates at schools earlier this year as part of the budget.
But they are telling the Arizona Supreme Court that if they did break the law, the justices should let them get away with it one more time and let the state block those mask requirements.
Well, actually, several more times.
They also want to be able to enforce not just the ban on schools requiring face coverings of faculty and students but also a grab-bag of other items stuffed into what lawmakers call “budget reconciliation bills.” These include whether universities can mandate vaccines, strip Secretary of State Katie Hobbs of some of her powers, create a committee to study the election audit, and even tell schools how they can — and cannot — teach about race, gender and ethnicity.
And on Tuesday the state’s high court will hear their arguments.
Attorney General Mark Brnovich, who is defending the lawmakers, wants the justices to overturn a ruling by Maricopa County Superior Court Judge Katherine Cooper that lumping those provisions — and many more — into these catch-all bills violates state constitutional requirements that what’s in each bill be reflected in the title and that measures be limited to a single subject. Among his contentions is that what meets that definition is strictly a legislative matter, not subject to judicial review.
But perhaps unconvinced that argument is going to fly, the attorney general is telling the justices, in essence, that no one ever told lawmakers they couldn’t approve disparate issues that way. So he wants them to let these provisions take effect with an admonition not to do it again.
He’s not alone.
In a separate legal brief, House Speaker Rusty Bowers, Senate President Karen Fann and Gov. Doug Ducey tell the justices that if they conclude they broke the law they should let this budget pass, let all the disparate provisions take effect, and tell them what they need to do — in the future — to comply.
“The legislature stands ready to implement diligently the judiciary’s constructions” of what the Arizona Constitution means, wrote attorney Thomas Basile. “But it is entitled to fair notice of, and an opportunity to institute,such new doctrinal developments.”
That presumes, however, the justices believe that lawmakers didn’t know — and shouldn’t be expected to know — what the framers of the Arizona Constitution meant when they spelled out in 1912 that every legislative act “shall embrace but one subject” and that subject “shall be expressed in the title.”
But Roopali Desai, representing education groups and their allies who sued — and convinced Cooper to rule in their favor — pointed out to the justices that the Supreme Court has, in fact, weighed in on this issue before.
That was in a 2003 legal fight where state lawmakers sued then-Gov. Janet Napolitano about her decision to veto several provisions out of three of what were called at the time “omnibus reconciliation bills.”
In that case, the court sidestepped the question of whether the governor’s power extends to the ability to reject spending reductions. The justices said, among other things, the dispute is political.
But Chief Justice Charles Jones, writing for the unanimous court, said he and his colleagues essentially were being put in a position of trying to determine if a governor is constitutionally authorized to veto provisions of one of these omnibus bills when it appears that the legislature itself wasn’t obeying the rules.
“The problem arises because the relevant ORBs address multiple subjects,” he wrote.
“Had the legislature addressed these subjects in separate bills, there would be no need to determine whether they were or were not appropriations,” Jones continued. “Thus, the problem we face is in part created by the apparent non-adherence to the single subject rule in the legislative process.”
More to the point, he said that having the court weigh in on whether Napolitano misused her veto power “would of necessity require that we simultaneously validate legislation which appears to conflict with the single subject rule.” And Jones said there were “numerous apparent violations of the single subject rule in the ORBs.”
Basile, however, said lawmakers did take that 2003 ruling seriously and did change their procedures.
Prior to 2004, he said, all those miscellaneous odds and ends were put into just three ORBs, the practice that the justices found legally wanting.
But since then, Basile said, they have broken them down into smaller chunks.
In fact, he said, this year there were eight “budget reconciliation bills,” each with “distinct subject areas” like environment, health, K-12 education and criminal justice. He said going from three to eight “complies with the single subject rule, while still accommodating the practical demands of governing a large, diverse and continually growing state.”
Not good enough, countered Desai.
She said what lawmakers essentially want is for the justices to conclude that simply breaking these into smaller pieces, by itself, complies with what the Arizona Constitution demands.
Desai said they actually first have to look in to what’s actually in each of the bills. And once they do, she contends, they will conclude that, whether it’s three bills or eight, the legislature still is not following what the constitution demands.
A link to a live video of the hearing, which begins at 9:30 Tuesday, will be available at: