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Tag: Arizona Constitution

Goldwater Institute challenges state tax credit for Arizona movie producers

Key Points
  • Appeal claims tax credit violates Gift Clause
  • Attorney says state actually loses money through tax incentivization 
  • State position is that filming movies, videos and commercials generates tax revenue

Rebuffed by a trial judge, the Goldwater Institute is now trying to convince the Arizona Court of Appeals that it’s illegal for the state to give tax credits to companies that make their movies, TV shows, and even their commercials in Arizona.

In court filings, attorney Parker Jackson said it is clear that what are billed as incentives to the film industry to do business in Arizona are little more than a give-away of state tax dollars.

He said the program, approved by lawmakers in 2022, allows the Arizona Commerce Authority to not just forgive taxes that are owed to the state but to actually have the state write out a check to any company whose accumulated credits exceed what they owe the state – up to $35 million to any one company and $125 million a year for all who qualify.

And that, Jackson is telling the state Court of Appeals, runs afoul of the Arizona Constitution.

Only thing is, that wasn’t the conclusion reached last year by Maricopa County Superior Court Judge Adele Ponce.

The trial judge acknowledged the Gift Clause in the Constitution bars the state from providing grants or subsidies to any individual or corporation.

But Ponce said there is no Gift Clause violation with what are labeled as “tax credits” because the state isn’t giving away anything. Instead, the judge ruled, the program simply allows people and corporations to pay less of their own money to the state.

More to the point, Ponce said her conclusion is not changed by the fact that the credits are “refundable,” meaning someone whose credits exceed the taxes owed actually can get a check from the state.

Jackson, in his filing, said the trial judge got it wrong.

What is not in dispute is that lawmakers originally approved the credits to jump start what at one time was a thriving movie industry in Arizona.

The tax credits can be generous.

Companies that spend up to $10 million in production costs can receive up to $1.5 million. And there’s a sliding scale for more expensive films, with credits going up to $7 million for a $35 million production.

There are some conditions.

A company can use a “qualified production facility” in the state, meaning studios of at least 10,000 square feet that have the necessary technology. Alternately, the credits apply when a production is “filmed primarily at a practical location” in Arizona.

But at that point, Jackson said, “the state must provide the subsidies.”

Proponents contend the state gets the benefit of additional business and exposure. But Jackson said the law doesn’t have anything that spells that out.

What does it have?

“The statute merely requires the film companies include an acknowledgment that the film was shot or produced in Arizona,” he told the appellate court. “That’s it.”

Jackson acknowledged that the credits are being promoted as an “incentive” to produce movies, videos and commercials in Arizona. But he said that, whatever they are called, they do not pass muster.

“Arizona’s Gift Clause … prohibits the depletion of the public treasury by allocating public resources for private enterprises, and/or the conferring of special advantages on private, special interests by subsidy or otherwise,” he said. “The payments provided under the program do both of those things.”

Jackson also rejected the concept that these are credits that offset someone’s tax liability.

There, the key is that “refundable” part.

Consider a company that is entitled to a $1,000 credit.

“If a taxpayer owes the government $5,000 at the end of the year, a $1,000 credit will reduce the taxpayer’s liability to $4,000,” he explained to the court. But all that changes if the credit exceeds the liability.

“For example, if a taxpayer owes the government $500 at the end of the year, a $1,000 tax credit will not only reduce the taxpayer’s liability to $0, but it will also result in a $500 payment to the taxpayer,” Jackson said.

Courts have concluded that the Gift Clause does not apply when the state gets something in return that is of comparable value. But Jackson said there are guideposts around that.

“The court must compare the public expenditure to what the government receives,” he said. And that means judges have to decide for themselves what is the “fair market value” of the benefit, not simply accept the state’s word about the value.

What’s also important, Jackson said, is that “anticipated indirect benefits,” like economic improvements the government hopes may result from the project, like anticipated new tax revenues, cannot be included in this analysis.

He said what that leaves is the requirement that the subsidized production acknowledge that it was produced in Arizona. But that, said Jackson, is not enough.

First, he said, the law is worded in a way that the company gets the credits even if the film never actually is released or distributed.

“In such cases, even assuming that a ‘filmed in’ credit can constitute a benefit to the state, that benefit will be nonexistent,” Jackson said.

And even if a film is released, figuring out the value of that credit is something else.

He cited testimony of Michael Thom of the University of Southern California who he said is an expert on film subsidy programs and their economic impact. And he said Thom said that any assumption of benefits is built on “speculative assumptions.”

“Namely, a viewer would have to observe the acknowledgment, understand its meaning, and plan to travel to the state that he or she would not have otherwise taken in order for the state to see any benefit from such an acknowledgment,” Jackson said.

The law creating the credits does say that one purpose is to “maintain the motion picture production company’s production-labor positions in the state.” But Jackson said that does not meet the definition of the “consideration” the state needs to provide subsidies because they are indirect, speculative, and not actually mandated by an enforceable contract.

And he said that anticipated taxes from productions also can’t legally count because the producers already were liable for the taxes.

The 2022 law wasn’t the first time the state has approved such credits. Lawmakers enacted a similar program in 2005 and expanded it in 2007.

A report on that program said that the credits generated 317 full-time jobs in the industry in 2008. And another 413 were created indirectly from spending by filmmakers in the state.

All totaled, according to the report, that generated about $2.3 million in additional state and local taxes.

But it turned out that Arizona actually gave out more than $8.6 million in credits to get that gain. And a similar report for 2007 showed a $1.7 million loss to the state.

Lawmakers repealed the program in 2015.

Sen. David Gowan, R-Sierra Vista, who championed the new credits in 2022, has insisted these are different from the prior program. He said it requires those seeking the credits to actually show, subject to a state audit, that they actually have spent the money in Arizona.

No date has been set for a hearing.

Mayes joins ACLU challenge to Arizona law limiting abortion providers

Key Points:
  • Democratic Attorney General Kris Mayes sides with ACLU challenging Arizona abortion laws
  • Mayes asks court to declare restrictions on abortion services unconstitutional
  • Arizona voters approved Proposition 139, adding abortion rights to constitution

Democratic Attorney General Kris Mayes is once again at odds with Republican legislative leaders over abortion.

Mayes has decided to side with attorneys from the American Civil Liberties Union who are challenging state laws that bar certain “advanced practice clinicians” like specially trained nurse practitioners from providing abortion services. And she is asking — as are the challengers — that Maricopa County Superior Court Judge John Blanchard declare the restrictions unconstitutional.

What makes that significant is that Josh Bendor, the solicitor general in Mayes’ office, said Arizona law generally requires the Attorney General’s Office to defend state laws when they are challenged in court. But, he said, that rule doesn’t apply “when there is not a plausible argument” to make, a stance that could prove significant given voters in 2024 agreed to put a right to abortion into the Arizona constitution.

That, in turn, has resulted in House Speaker Steve Montenegro and Senate President Warren Petersen hiring their own private lawyers, at taxpayer expense, who, on their behalf, are asking Blanchard to toss the case.

Neither GOP leader would respond to questions about their decision to defend the law that Mayes and Bendor say is legally indefensible. 

“To me, the question is, why is the Legislature spending taxpayer money to defend these kinds of things in the face of the will of the voters,” Bendor said.

How quickly the issue can be resolved — and whether there can even be a ruling on who can and cannot perform abortions in Arizona — is unclear. At a court hearing earlier this week, attorneys provided no timeline for when they would be ready to bring the case to court.

Central to the lawsuit is the fact that the state Board of Nursing, which also regulates advanced practice nurses, concluded in 2008 that they can safely perform first-trimester abortions.

They are a subset of registered nurses who, by virtue of advanced education and training, have a broader scope of practice than traditional registered nurses. They also can hold special licenses, like a certified nurse midwife and a nurse practitioner license.

The Republican-controlled Legislature responded almost immediately with a measure stripping the nursing board of its power to decide who can perform the procedure.

What changed since then is that voters in November 2024 approved Proposition 139 by a 3-2 margin, 

adding a “fundamental right to abortion” to the Arizona Constitution prior to fetal viability, generally considered between 22 and 24 weeks. And attorneys for challengers say the only exception is when there is a “compelling state interest that is achieved by the least restrictive means.”

It is now up to Blanchard to decide the scope of the voter-approved initiative.

Challengers say the verbiage is on their side.

“The fundamental right to abortion means little when Arizonans cannot get care from a trusted and skilled provider in their own community,” said Lauren Beall, a staff attorney at the ACLU of Arizona. “Overturning senseless restrictions that tie the hands of advance practice clinicians is the next step to fulfill the promise of the Arizona Abortion Access Act.”

Montenegro and Petersen, through their lawyers, are taking a contrary position.

“None of the challenged provisions denies, restricts, or interferes with the right to abortion,” they are telling Blanchard.

And if that argument doesn’t work, they have another one — one linked to the exception within the amendment.

They contend that, if nothing else, each of the restrictions “is justified by a compelling state interest that is achieved by the least restrictive means.” But the legal papers filed so far on their behalf do not explain that claim.

Bendor, however, said that he and Mayes see no legal basis for GOP lawmakers to argue that the restrictions remain enforceable.

“The standards changed a lot when voters enacted Prop. 139,” he told Capitol Media Services. “It sets a pretty high burden for laws to meet to restrict the right to abortion.”

It was that touchstone, Bendor said, that his office used to evaluate the legal restrictions on advanced practice nurses. He said these are restrictions that exist “even though nurses have done so historically, have done so elsewhere, do other gynecological things that are more complicated.”

“We determined that these restrictions don’t meet the constitutional requirements,” he said. Conversely, Bendor said, the office had no good arguments why the laws would pass muster, even with the exceptions built into Prop. 139.

He said the decision to side with challengers was not made lightly.

“As a matter of process, we start with the assumption that our job is generally to defend state law,” Bendor said.

“But when there just is not a plausible argument in defense of a given state law, then it’s not in the public interest or within our responsibility to do so,” he said. “And that’s more likely to happen when you have an intervening change in constitutional law that then calls into question statutes that were enacted without that constitutional provision even in mind because it didn’t exist at the time.”

And all that, said Bendor, leads to “a very different calculus” in terms of the role of the Attorney General’s Office.

In fact, Bendor said, that is the same sort of calculus that should have — but did not — affect the decision by GOP lawmakers to defend a law despite that intervening change of the adoption of Proposition 139.

The fight over the restrictions, according to challengers, has real-world impacts.

In their own legal filings, they said that since that ban took effect, abortion has only been consistently available in Pima and Maricopa counties, with “interrupted and limited services” at a single clinic in Coconino County. The requirement that only doctors can provide abortions, the challengers argue, means patients often have to drive for hours.

They also claim there is no medical reason for the law, backing that up with is a statement from by the American College of Obstetricians and Gynecologists, which says that bans like the ones in Arizona “are not based in science, improperly regulate medical practice, and impede patients’ access to quality, evidence-based health care.”

And the federal Food and Drug Administration, in approving the drugs used in medication abortions, have authorized advanced clinicians to provide medication abortions.

But what’s also involved, the challengers say, is the right of women to make choices for themselves.

“People choose their health care provider, whether a physician or an APC, for various reasons, some deeply personal,” the lawsuit states. “Particularly when it comes to abortion care, they may have a strong preference for a trusted provider they have seen for other primary or reproductive health care.”

And sometimes, the lawsuit says, it can be as simple as people preferring a clinician to a doctor, wanting someone who can see them quicker, or even is closer to home.

“By overriding people’s choice or provider, for no medical reason, the APC ban violates their autonomy.”

This isn’t the first time Mayes has refused to defend abortion laws that were in existence when Proposition 139 was approved.

She took a similar stance when the ACLU and the Center for Reproductive Rights filed suit in 2025 challenging a series of prior existing laws.

That included laws like a 24-hour waiting period before a woman can terminate a pregnancy and a ban on doctors performing an abortion if they have reason to believe the patient is seeking the procedure because of a fetal genetic defect. Challengers also sought to void a prohibition on the use of telemedicine in abortion cases — including a ban on the mailing of abortion pills to patients.

“We have determined that the three laws that the plaintiffs are challenging here are unconstitutional and cannot withstand tests that the voters stood up when they amended the constitution to protect abortion rights,” Mayes said at the time.

All of those laws were later voided by a trial judge who rejected arguments by GOP lawmakers that they remained enforceable despite voter approval of Prop. 139. That ruling, however, remains on appeal.

There also is a separate but related issue playing out in federal court where Louisiana got a federal appeals court to ban telehealth abortions — and, specifically, the shipping of abortion pills — based on the argument that it allowed its residents to circumvent that state’s abortion ban. But that ruling has been paused by the U.S. Supreme Court.

Home rule under pressure: Arizona’s rebalancing of state and local power

Herb Paine

In Arizona, we still speak the language of local control. The state constitution permits cities to adopt charters, and “home rule” is often treated as a settled feature of our political system. But in practice, something more subtle and more consequential is occurring. Local authority is being steadily narrowed not through a single sweeping reform, but through a series of targeted legislative interventions that collectively reshape the balance of governance.

As the Legislature moves through the closing stretch of its session, that pattern is becoming clearer.

Lawmakers are advancing measures that significantly constrain local fiscal authority. House Bill 4030 would freeze municipal and county taxes, fees and utility rates through 2030 and require a 60% voter threshold for any increases. It also subjects violations to enforcement under A.R.S. § 41-194.01, which authorizes the attorney general to investigate and penalize local governments for violations of state law, including through potential loss of shared revenues.

At the same time, additional proposals and ballot measures would limit local revenue tools in specific domains, including efforts to restrict taxes on groceries and prohibit vehicle-miles-traveled fees at the local level.

These are not isolated initiatives. They reflect a broader pattern of fiscal preemption in which cities retain formal taxing authority but face increasingly narrow practical discretion in how it can be exercised.

In housing and land use, the pattern is already well established. Arizona law preempts cities from banning or limiting short-term rentals under A.R.S. § 9-500.39, regardless of local housing conditions or neighborhood impacts.

More recent legislative efforts, including the Arizona Middle Housing Law, follow-on exemption proposals for historic districts, and related statewide mandates expanding accessory dwelling units and by-right housing approvals, have further constrained local zoning discretion and shifted core land-use decisions upward to the state level.

Individually, each of these actions can be defended on policy grounds. Housing affordability is a statewide concern. Tax uniformity has economic logic. Regulatory consistency can reduce friction. However, the problem is that, when nearly every issue is redefined as a matter of “statewide concern,” the category of genuinely local decision-making begins to erode.

This isn’t how Arizona’s system was designed to function. The Arizona Constitution explicitly permits charter cities to govern their own municipal affairs. The underlying premise is not that cities are sovereign, but that they are closer to the consequences of their decisions and therefore better positioned to calibrate policy to local conditions.

What we are seeing instead is a gradual inversion of that principle. The state is no longer setting broad guardrails and allowing local variation within them. It is increasingly dictating outcomes: what cities may tax, how they may grow, and what policy tools they may use to respond to economic pressures and, in some cases, backing those constraints with enforcement mechanisms and fiscal penalties.

The democratic implications are not abstract.

Local government is the level at which civic participation is most immediate and visible. City councils and mayors operate at a scale where public input can directly shape outcomes. As authority is shifted upward, that proximity weakens. Decisions move further from the communities they affect, and accountability becomes less direct.

There is also a structural concern. Arizona isn’t a uniform polity. Phoenix, Tucson, Flagstaff, and smaller municipalities face distinct pressures, from rapid growth to infrastructure constraints. A one-size-fits-all framework imposed at the state level may produce consistency, but it risks reducing policy responsiveness where it matters most.

None of this is to argue that the state lacks a legitimate role. But the threshold for intervention should be meaningful, not elastic. Otherwise, “statewide concern” becomes less a doctrine than a default justification for preemption.

The question, then, is not whether the Legislature should act. It is whether Arizona is preserving a genuine balance between state authority and local autonomy or steadily replacing it with a model of centralized decision-making.

If current trends continue, we may soon find ourselves with home rule in name only: a constitutional promise that remains intact on paper, even as the practical space for local self-governance continues to narrow.

That shift would not merely alter policy outcomes. It would change the character of governance itself, moving decisions further from the people most affected by them, and weakening a layer of democracy that depends on proximity, accountability, and local discretion.

Once diminished, that layer is not easily restored.

Herb Paine is President of Paine Consulting Services, specializing in organizational development and change management, a social and political commentator, and former Congressional candidate. 

Arizona lawmakers propose 5 different ways to raise legislator pay

Key Points:
  • Lawmakers have introduced a variety of proposals to raise legislator pay
  • Many say the current $24,000 salary, unchanged since 1998, is insufficient 
  • Voters could decide on a raise via ballot measure come Election Day

Katie Hobbs says when she was a state senator a decade ago she was making $24,000 a year.

“It wasn’t enough,” she said in a recent message to followers while asking for money for her reelection campaign.

But Hobbs, now governor and making $95,000 a year, is showing far less sympathy toward lawmakers who are still being paid the same $24,000.

“It’s certainly not sustainable to live on $24,000 a year,” she said in response to a question from Capitol Media Services. “But it is intended to be a part-time salary,” with sessions lasting — at least according to legislative rules — just four months a year, though that hasn’t happened in years.

Still, Hobbs acknowledged that for many lawmakers it ends up “being more of a full-time job,” with other legislative obligations through the rest of the year making it difficult, if not impossible, to convince another employer to allow them to be gone that much.

But don’t look for the governor to champion any of the various efforts being proposed this year to ask voters — who under the Arizona Constitution now have the final say on salaries — for more money. And the reason is strictly political.

“I think if they want Arizonans to pay them more, they need to show up, they need to present their budget, they need to work with me to get a 123 (education fund extension) passed so we can fund public schools,” Hobbs said. “That way they can make the case for voters to give them more.”

The Republicans who control both the House and the Senate, for their part, contend that the Democratic governor is the obstruction.

They say her $17.8 billion budget proposal is based on unrealistic revenue predictions, like getting $760 million in reimbursement from the federal government for money spent on border security. And then there are proposals with no realistic chance of support in the GOP legislature like putting income caps on families who want vouchers of taxpayer funds to send their children to private and parochial schools or home school them in an effort to save $80 million.

And then there’s the fact that it was Hobbs who walked away from budget negotiations.

But none of that is keeping lawmakers — from both parties — from proposing various ways to convince voters to approve plans that would raise their salaries, in some cases by quite a lot.

The current constitutional language says a special commission is supposed to meet regularly and make recommendations on legislative salaries. But anything the panel proposes has to be ratified at the ballot.

Voters approved the last raise in 1998, taking the pay from $15,000 to the current $24,000.

Since then, there have been several attempts to boost the pay, with offers at $30,000, $35,000 and $36,000. All were rejected. And the commission hasn’t met in years because state officials — including the governor — have failed to appoint new members.

Each of the five proposals would ask voters to scrap that system. And, each of them, upon approval, eliminates the need for lawmakers to get their approval for future pay hikes.

Sen. Shawnna Bolick crafted one rather complex proposal to send to voters.

It would set the salaries of state senators at 30% of what members of Congress are paid — currently $174,000 — with state representatives getting half of what senators get.

But there’s more.

Her SCR 1050 would give senators four-year terms, leaving representatives at two. It would prohibit lawmakers from leaving office to take a job in any position created while they were in office, or for four years after that. It would remove drunk and reckless driving from the list of offenses for which lawmakers cannot be arrested during session.

And legislative candidates would have to list on the ballot their education level, any vocational training, professional licenses, whether they served in the military and were honorably discharged, and whether they voted in the last three general elections.

Her proposal never got a hearing.

Phoenix Rep. Stacey Travers proposed setting the salary at $35,000, with automatic cost-of-living increases after that, given voter approval.

To sweeten the deal for voters, her HCR 2002 sought to limit legislative tenure to no more than eight years in the Senate and eight years in the House. There are current eight-year limits — but no prohibition against lawmakers going back and forth between the chambers forever.

Her bill, too, never got a hearing.

The same fate befell HCR 2025 by Tucson Democratic Rep. Chris Mathis, who simply wanted to ask voters to give up their right to ratify legislative salaries and leave it to lawmakers themselves.

Currently, two measures are advancing.

One is a proposal by Sen. John Kavanagh to change the Arizona Constitution to replace the requirement for voter approval of pay hike proposals with automatic inflation indexing.

But what SCR 1020 does not make absolutely clear is that this indexing, if approved in November, would not be prospective only. Instead, it would require a computation going back to that last pay raise in 1998.

The Fountain Hills Republican said that approach is appropriate.

He said that, in approving the $24,000 salary at that time, voters decided that was appropriate compensation. Kavanagh said all this does is respect the will of the voters that $24,000 — in 1998 dollars — is appropriate compensation.

That, however, still leaves the fact that $24,000 in 1998 dollars translates out to about $48,000 now. And that could prove too much of a one-time jump for some voters.

The other measure also awaiting further legislative action is SCR 1012.

Sponsored by Sen. David Gowan, R-Sierra Vista, it would replace the current commission — the one that hasn’t met in years because of a lack of appointments — with a different panel chaired by the chief justice of the Arizona Supreme Court and made up of members chosen by Democratic and Republican legislative leaders.

They would recommend an appropriate salary for all state elected officials, from the governor on down — but not for legislators. And their recommendations would become law unless amended or rejected by the Legislature.

And legislative salaries? The bill would automatically set the governor’s pay at 60% of whatever the governor makes — a provision that could encourage lawmakers to accept the panel’s recommendation, as it would affect their own pay, with the added political advantage of not actually having to publicly vote for their own pay.

Right now the governor makes $95,000. So, if nothing else changed, that would boost legislative pay to $57,000.

No other state pays its governor so little. That potentially could create pressure on the commission — if SCR 1012 goes on the ballot and is adopted — to boost the salary and, by extension, the legislative pay tied to it.

But Hobbs, after questioning whether lawmakers deserve more money, sidestepped the question of what she considers a proper salary for the governor of Arizona.

“It’s not up to me to decide,” she said.

“I talk to Arizonans every day who are struggling,” the governor said. “And they make a lot less than I do as governor.”

Hobbs, however, said she won’t be making the same promise as gubernatorial hopeful Hugh Lytle who is hoping to secure the No Labels nomination for governor. He has promised that, if elected, he would donate his entire salary to a qualified charity.

“I cannot afford to do that because I am not a billionaire,” Hobbs said.

A campaign spokesman for Lytle said he is not a billionaire but merely a multi-millionaire.

Arizona GOP push to standardize state election dates

Key Points: 

  • Republican lawmakers seek to override local election laws
  • Senate Committee approves measure for uniform election dates
  • Tucson Mayor Regina Romero opposes state control over local elections

Republican state lawmakers are making yet another try to tell Tucson — and all the state’s charter cities — when to hold their elections.

On a party-line vote on Feb. 20, the Senate Committee on Judiciary and Elections approved a measure to require all cities, towns and school districts to hold elections on the first Tuesday after the first Monday in November, and only in even-numbered years.

SCR 1027, which now awaits a vote of the full Senate, is not the first effort by GOP lawmakers to override local election timelines. In fact, several attempts have already been slapped down by the Arizona Supreme Court. 

In the most recent ruling in 2021, Justice Ann Scott Timmer, writing for the majority, said the Arizona Constitution clearly gives cities that have adopted their own charters “autonomy over matters of purely municipal concern,” ultimately concluding that cities have the legal authority to run local elections.

So, Sen. J.D. Mesnard, the architect of prior efforts, came up with a work-around.

The Chandler Republican wants to codify a single election day for all into the Arizona Constitution. And that, Mesnard said, would override the right of charter cities to go their own way.

But there’s a hurdle. Even assuming he can get it through the Republican-controlled House and Senate, it would still require approval of voters statewide in November. 

Mesnard said he’s convinced it would pass. And he even believes it would get support in Tucson, Tempe, Prescott, Douglas, Holbrook and Winslow, where election schedules would be overwritten.

“We do think the voters would prefer to have a single election date,” he said.

The fight actually goes back to 2012, when legislators said cities had to hold elections at the same time voters choose federal, state and county officials. But that was struck down by the Arizona Court of Appeals which said that lawmakers had no statewide interest in interceding in what charter cities consider a local matter.

The 2018 revision sought to get around the earlier ruling with a declaration calling it “a matter of statewide concern” to boost voter turnout. It directed that cities have to scrap their election dates if turnout at a local-only election was 25% less than the most recent statewide election.

The Tucson turnout in 2019 was 39.3%, compared with 67% of Tucsonans who voted in the regular 2018 election.

But the council ignored the law, with local voters rejecting a 2019 ballot measure to conform to a statewide schedule. And they specifically set the 2021 primary vote for Aug. 3, with the general election for Nov. 2, 2021.

So, at Mesnard’s request, Attorney General Mark Brnovich asked the state’s high court to rein in the city, declare the ordinance void, and put city elections on an even-year cycle.

Timmer, in rejecting the lawsuit, said the issue goes beyond the right of charter cities to make their own decisions. She also said that cities may have legitimate reasons for conducting off-cycle elections.

One issue, Timmer said, is the possibility of “voter fatigue,” where discussion of local issues gets buried during a statewide election.

“Weighing those considerations implicates a city’s choice for how best to elect its officers,” she said.

Now Mesnard is trying a different approach: Asking voters statewide to amend the Arizona Constitution to override the right of cities to decide when to hold their elections.

The entire legislative exercise annoys Tucson Mayor Regina Romero.

“State legislators have tried to manipulate elections for years,” she told Capitol Media Services. “Everyone from our own voters to the state Supreme Court has agreed that these are our decisions to make.”

One of the arguments Romero has advanced — and Tucson voters have so far approved — is there’s a good reason for the city to have its own election on its own date. What that does, the mayor said, is allow for “city-focused campaigns and robust public discourse on local issues that would otherwise be overshadowed by federal and state elections on even years.”

By contrast, moving the local elections to November would mean that city candidates — and any city issues — would appear at the bottom of the ballot, below the statewide and legislative candidates and any initiative and referendum measures.

And there’s something else: All the publicity and all the commercials for local candidates and issues would have to compete with what is being put out in far more expensive campaigns for statewide — and, in some years, national — offices.

“As a charter city with power over our own local affairs, and with many of our state and federal officials being unreliable partners, we plan to continue holding elections to maximize a focus on local issues now more than ever,” Romero said.

Mesnard has not been convinced.

 “I don’t have a lot of sympathy for the idea that folks can’t break through the noise, given that legislators face a similar phenomenon,” he said in advancing prior efforts, noting they, too, have to run during consolidated elections. And he said the alternative of multiple election dates is worse.

“You would have these happening throughout the year, constant commercials or ads or whatever, that I don’t think voters really want,” Mesnard said.

All that still leaves a practical issue for Romero and backers of letting cities set their own election dates.

Mesnard’s SCR 1027 would go on a statewide ballot in November. And that means the issue of when Tucson elects its officials would be decided not by a court but by a majority of those who turn out in a state where a majority do not live in cities with local election dates.

“The mechanics are different this year, but the story is the same,” Romero said. And she believes that voters statewide can be convinced this is a bad idea.

“This is another case of Phoenix politicians overreacting and interfering in local Tucson elections for their own political gain,” she said. “They have already wasted taxpayer money pursuing this and they’re trying to waste more.”

Arizona bill would enshrine right to refuse medical mandates in state constitution

Key Points:
  • Arizona voters may decide on a “right to refuse medical mandates” constitutional amendment
  • The amendment would prevent the government from mandating medical products or treatments
  • Arizona’s vaccination rates have been declining since 2010, predating COVID

Arizonans may get the chance to decide if they’re free to refuse vaccines without losing their right to go to school, keep a government job or go to a public park.

Ditto the ability to refuse to wear a mask.

Legislation awaiting a vote by the full House would ask voters to decide whether to put a “right to refuse medical mandates” in the Arizona Constitution.

More specifically, HCR 2056 says the government cannot mandate, require, coerce or compel any one to accept, receive or administer any medical product or treatment that involves invasion of the body as a condition of employment, education, entry to any public facility or space, or “exercise of any right, privilege or benefit.” And the same would apply for anyone refusing “affixing any item or article to the body for any reason or purpose.”

The measure cleared the House Health and Human Services Committee last week despite objections from Dr. Zaid Fadul representing the Maricopa County Medical Society.

“I don’t want to be told that I can’t go to a park,” he told lawmakers.

“I don’t want to be told that I can’t go to a train station or something like that,” Fadul said. “I don’t want somebody in my business. I understand that urge.”

But he said there also needs to be consideration for what happens in an emergency.

“I would argue that there is one right now with the measles outbreak occurring all over the country,” Fadul. “We lose a tool of containment.”

And he said that, in his opinion, that overrides any trade off.

“I’m really concerned this bill would prioritize a handful of people’s God-given rights at the expense of other people’s rights,” Fadul said.

But Rep. Nick Kupper, who crafted the proposal, said he sees it from a different perspective.

“The basic principle here is that if you don’t have control over your own body, what do you have control over?” he said.

The Surprise Republican acknowledged the data presented by Fadul, which has shown a sharp decline in the number of people getting vaccinated against various diseases. That includes measles.

Kupper, however, said that it is the fault of how governments — including the one in Arizona — handled the COVID outbreak, with conflicting messages about masks, social distancing, closing down restaurants, and a push to get everyone vaccinated even though it turned out that children, in general, were not dying from the virus. That, he said, undermined public confidence in government advice, including getting vaccinated.

But Kupper contends that once people stop getting told — and forced — by the government to believe a certain way, they will then make choices on their own. And he said he believes that absent government coercion could lead to an increasing rate of voluntary inoculations.

There is no way to know whether that claim will prove true.

Arizona already has some of the most liberal laws allowing parents to claim exemptions from having their children vaccinated, including not just for medical and religious reasons, but also to say it is against their personal beliefs, a right that does not exist in most other states.

Fadul, for his part, did agree with Kupper on one point: The COVID situation was mismanaged by the government.

“But it didn’t start with COVID,” he said. Fadul said vaccination rates have been going down since 2010 — a decade before the pandemic — something he said is “very directly in line with social media” and misinformation put out about both the effectiveness and risks of vaccines.

All of that still leaves the question of whether Arizonans want a constitutional right to refuse medical mandates — and what that would mean.

Recent numbers from state schools show only about 89% of Arizona kindergartners were fully vaccinated against measles, mumps, and rubella, down from 93.5% prior to COVID.

Given the broad right of parents to refuse to vaccinate their children, there is no mandate. And even during COVID there were no requirements to get immunized.

What would change, with approval of the constitutional amendment Kupper is pushing, is whether unvaccinated children can be required to stay home.

Current Arizona law allows schools, preschools and child care programs to refuse to allow children to attend if the health department declares an outbreak of a vaccine-preventable disease if parents cannot provide proof of immunity. In fact, that is spelled out on forms where parents can request one of the exemptions now allowed.

That would change if voters approve the measure.

“You can’t turn away a kid solely for being unvaccinated,” Kupper said if his measure became law.

What a school could do, he said, is place unvaccinated children in a separate area for their classes. And Kupper said schools could “educate the parents” and “highly suggest that your child not come because they’re the most at risk.”

Anyway, he said, the experience with the most recent outbreak — that of measles — says the risk is largely to the unvaccinated.

“That’s a personal risk decision, just like when you take your kid on a ‘quad’ or not,” Kupper said, referring to an all-terrain vehicle.

“There’s a risk of greater harm than when you have your kid in a car,” he said. “But that’s a decision that you make.”

Kupper also noted there was no such rule during COVID, with schools either open to everyone — vaccinated or not — or entirely closed.

The measure also would affect other public buildings and parks.

Fadul said there may come a point where the government needs to close a park to keep unvaccinated kids from gathering. But Kupper said there’s no reason for restrictions on what occurs outside.

There are some exceptions in HCR 2056 and its right to refuse medical mandates.

It would allow hospital districts established under state law to require their employees and contractors to comply with health and safety protocols necessary for patient protection, including masks. And anyone in law enforcement custody, including prisons, also would lose the right to refuse medical mandates.

Fadul said all of this — especially providing another reason for people not to get vaccinated — ignores the disease process.

“You’re looking at four days before somebody shows symptoms,” he said of measles.

“If I was to get on a plane and I didn’t have symptoms, I could travel around the world multiple times over and stop in a variety of environments in four days and spread it, just like that,” Fadul said, snapping his fingers.

And he said removing tools from health officials to close off places — especially with a falling vaccination rate — is not the answer.

Court upholds Arizona film tax credits, rejects Gift Clause challenge

Key Points:
  • Judge rules Arizona film tax credits are legal
  • State allows up to $125 million in credits for film productions
  • The state has repealed similar film credit programs in the past

A judge has concluded that there’s nothing illegal about the state giving tax credits to companies that make their movies and even their commercials in Arizona.

That’s according to a new ruling from Maricopa County Superior Court Judge Adele Ponce, who said the Arizona Constitution bars the state from providing grants or subsidies to any individual or corporation. And Ponce acknowledged that lawmakers approved a statute allowing the Arizona Commerce Authority to issue up to $125 million in credits each year that producers can use to offset any tax liability they owe.

But she said there’s no Gift Clause violation here because the state isn’t giving away anything.

Instead, the judge ruled the program simply allows people and corporations to pay less of their own money to the state if they qualify.

And Ponce said that is not changed by the fact that the credits are “refundable,” meaning someone whose credits exceed the taxes owed actually can get a check from the state.

Her ruling is a defeat not only for the Goldwater Institute, which filed the lawsuit, but also for Senate President Warren Petersen. The Gilbert Republican actually filed a legal brief in the case urging the judge to undo the program that was enacted by lawmakers — including half of the senators from his own party.

The Goldwater Institute has vowed to appeal, and Jon Riches, vice president for litigation, said his organization still believes the credits are an illegal subsidy.

According to proponents, the credits were designed to breathe new life into what was once a more thriving film industry in Arizona, dating back at least to the 1930s, when John Ford visited Monument Valley and decided to film Stagecoach with John Wayne.

And the studios at Old Tucson were for a long time the site for various westerns, ranging from The Lone Ranger to Three Amigos, before much of the facility was destroyed in a 1994 fire.

But what’s happened more recently is that productions that were supposed to portray events in Arizona were actually filmed elsewhere.

During debate on the 2022 legislation, Rep. Stephanie Stahl Hamilton, D-Tucson, cited “Only the Brave,” the 2017 movie about the deaths of the 19 Granite Mountain Hotshots who died while fighting the 2013 Yarnell Hill Fire. As it turns out, she said, the movie, which had a budget of $38 million, was not shot here.

“That is our story and that is our history,” she said. “It had to be filmed in New Mexico because it’s not economically feasible for them to shoot that film in our own state.”

And adding insult to injury was the 2008 film “Hamlet 2” starring Steve Coogan, Catherine Keener, Amy Poehler and Elisabeth Shue about a failed actor teaching high school drama.

It opens with the main character asking, “Where does one go for dreams to die?” — only to pan to a sign that says “Welcome to Tucson, Arizona.” Yet the whole thing was filmed in Albuquerque.

The tax credits can be generous.

Companies that spend up to $10 million in production costs can receive up to $1.5 million. And there’s a sliding scale for more expensive films, with credits going up to $7 million for a $35 million production.

What’s wrong with that, the Goldwater Institute argued, is there’s no evidence of actual benefit to the state. In fact, an audit of a prior version of the credits showed the credits awarded actually exceeded the state and local taxes generated by the movies.

And the lawsuit questioned whether there was any real value to the requirement that the film acknowledge it was produced in Arizona.

All that, Ponce said, is legally irrelevant.

She said the Gift Clause applies only to “public money.” And that, she said, is not the case with a credit.

The judge cited a 1999 Arizona Supreme Court ruling in which the Arizona Education Association challenged a state law that provided a dollar-for-dollar tax credit to individuals who donated to organizations that provided scholarships for students to attend private and parochial schools. Here, too, the allegation was that the credits violated the Gift Clause.

But Ponce pointed out that the justices said that in order for something to be a gift, it had to be money appropriated from the state treasury.

In that case, the high court said, there was no actual appropriation of state funds to a scholarship organization. Instead, it was the Legislature telling people that if they gave to these organizations they then could reduce their taxes by the same amount.

Put another way, there was no gift because the state never had the money to give away in the first place.

The same is true of the film tax credits, she said, because the state isn’t giving companies money to produce films in Arizona but simply allowing qualifying firms to pay less to the state.

Riches, however, contends there’s a difference.

In the case of the scholarships, he said, the taxpayers still were paying the money. The only difference is it went to the organizations rather than the state.

By contrast, Riches said, the companies taking the credits here have not given an equivalent amount to anyone else, and are simply pocketing the dollars.

He contended that’s even more true if companies can get refundable credits from the state if their earned credits exceed their tax liability.

Ponce disagreed, saying that even credits that result in a refund are not gifts.

This isn’t the first time the state has approved such credits. Lawmakers enacted a similar program in 2005 and expanded it in 2007.

A report on that program said the credits generated 317 full-time jobs in the industry in 2008, with another 413 created indirectly from spending by filmmakers in the state.

According to the report, that generated about $2.3 million in total additional state and local taxes.

But it turned out that Arizona actually issued more than $8.6 million in credits to achieve that gain. And a similar report for 2007 showed a $1.7 million loss to the state.

Lawmakers repealed the program in 2015.

Sen. David Gowan, R-Sierra Vista, who championed the new credits, has insisted these are different from the prior program. He said it requires those seeking the credits to actually show, subject to a state audit, that they actually have spent the money in Arizona.

Lawmakers face legal challenge over $1M gift to horse racing

Key Points:
  • State lawmakers face accusations of illegally giving away public funds
  • AG Mayes agrees a $1 million appropriation to Turf Paradise violates Gift Clause
  • AG previously targeted questionable public spending

State lawmakers are once again on the cusp of being found to have illegally given away public funds.

In new court filings, Attorney General Kris Mayes said she agrees with challengers that a $1 million appropriation to Phoenix racetrack Turf Paradise in the new state budget violates the Gift Clause of the Arizona Constitution. The move paves the way for Maricopa County Superior Court Judge Michael Herrod to sign an order on his desk declaring the funding illegal and barring the Arizona Department of Racing from distributing the cash.

In exchange, Howard Mechanic and Ralph Hess, the plaintiffs in the case, will drop their objection to lawmakers giving another $1 million to the Arizona Thoroughbred Breeders Association to be used to promote racing and provide more dollars to give to winners of horse racing in the state.

If the names of the challengers seem familiar, they should.

Both are Prescott residents. And Hess is a retired Yavapai County Superior Court judge.

More to the point, the pair were the plaintiffs in a lawsuit in which Maricopa County Superior Court Judge Scott Blaney just months ago declared the Legislature in violation of the Gift Clause, this one for earmarking $15.3 million in 2023 for the nonprofit foundation that runs the Prescott Frontier Days rodeo.

That issue has since been resolved with lawmakers recrafting the law to give the money directly to the city of Prescott to make improvements to the city-owned rodeo grounds.

But that may not be an option to fix the problem in this case. That’s because, unlike the rodeo grounds, Turf Paradise is privately owned.

It was that fact that caused Mechanic and Hess to sue over the $1 million appropriation.

Central to the issue is the Gift Clause. It makes it illegal for the state to “make any donation or grant, by subsidy or otherwise, to any individual, association or corporation.”

That does not bar the state from giving money to private entities. But it does require that the funding serves a public purpose and includes adequate “consideration,” meaning taxpayers are getting some benefit from the expenditure.

In filing suit last month, Mechanic and Hess said neither appropriation meets the test because they don’t require either Turf Paradise or the Arizona Thoroughbred Breeders Association to actually perform any public function in exchange for the money. The pair also said nothing in the appropriation gives either the state or the Arizona Department of Gaming any control or supervision over how the money is used.

Sen. John Kavanagh, who supported putting the dollars into the budget for the fiscal year that began July 1, disagreed. He said there is a public purpose.

“I think there’s an economic benefit to the state just in terms of revenue that tourists bring in, not to mention providing recreational amenity for residents and tourists alike,” he told Capitol Media Services when the lawsuit was filed. “We do it all the time.”

Danny Adelman with the Arizona Center for Law in the Public Interest, who filed suit on behalf of Hess and Mechanic, told the judge that’s not good enough.

He said the question of whether there is the legally required “consideration” is based on “direct benefits that are bargained for as part of the contracting party’s promised performance.” And Adelman said it does not include “anticipated indirect benefits.”

This isn’t the first time the state has given public funds for horse racing. Adelman said lawmakers set aside $10 million in both 2021 and 2022, with $6 million in 2023 and $5.5 million in 2024.

“The state has been giving away similar gifts for many years,” Mechanic told Capitol Media Services. He also said this agreement, coupled with the ruling about the funds for Prescott Frontier Days, should serve as a reminder of what is and is not allowed.

“I hope both the Legislature and the various state departments will now stop such expenditures,” Mechanic said. “The most effective way to avoid future gifts is for the state to develop a regular procedure to analyze the public costs and public benefits of most proposed expenditures intended to go to private parties.”

Mayes would not comment on the specific decision to settle the case. But press aide Richie Taylor said on Sept. 10 that it is in line with her views on the issue.

“Attorney General Mayes believes lawmakers need to be more mindful of the Gift Clause when making appropriations,” he said.

“The Gift Clause requires that public dollars be spent for true public purposes,” Taylor said. “Playing fast and loose with that standard risks litigation and wastes taxpayer money.”

This isn’t the first time that Mayes has said a line needs to be drawn around what constitutes a proper use of public funds.

Last year, she targeted money spent by the publicly funded Arizona Commerce Authority to wine and dine corporate CEOs who had come to Arizona for sporting events.

Mayes said the decision to entertain top executives could be considered to have a public purpose. She said it could be seen as part of the organization’s responsibility to market the state and get companies to expand or relocate here.

But Mayes said the amount of money spent on what were called “CEO Forums” – $2.4 million at the 2023 Super Bowl and Waste Management Phoenix Open over the prior six years — violates the Gift Clause.

“They give valuable benefits to a limited class of private persons without receiving any legally cognizable benefit in return,” she said.

The Commerce Authority got the message. It agreed to use mostly private funds at future events.

That most immediately played out at the 2024 Waste Management Open, in which the authority had a $123,000 budget for the five-day event.

Of that, $42,000 was to come from taxpayer dollars under the control of the authority.

But the tab for the big-ticket item — $65,000 for tickets to the event for corporate executives and sponsoring a suite — was picked up by the Greater Phoenix Leadership. That organization of 150 business leaders bills itself as a CEO roundtable promoting public policy initiatives.

Another $14,000 for hotel rooms at the downtown Phoenix Hyatt Regency became the responsibility of the Arizona Tourism & Lodging Association, made up of statewide hotels and resorts, tourism attractions, sports teams, airlines and related business partners. And Horizon Strategies, a lobbying and consulting firm, was responsible for $2,500 for “hospitality items ranging from snacks and sunscreen to hats and hand sanitizer.

What that left for taxpayers to pick up — and what Mayes found acceptable — was $25,000 to rent room space, catering, and audio-visual equipment for “informational sessions” with the invited guests, $12,000 for their transportation around Phoenix, and $5,000 for marketing materials which Scott Rooney, the authority’s legal counsel, said included mailings and items “highlighting Arizona’s value proposition.”

In reaching a deal with the Commerce Authority, Mayes made it clear that there has to be some proportional consideration for the expenditure of state funds. And she said the mere fact that businesses might relocate here is insufficient.

“Paying taxes applicable to all is not a consideration,” Mayes said. “Businesses inherently generate taxes and stimulate the economy, so permitting such impacts to justify public funds of private ventures would eviscerate the Gift Clause, even if the private ventures would not exist without public funds.”

Court finds Legislature failed to provide adequate public school maintenance funding

Key Points: 
  • Judge rules public school facilities funding scheme unconstitutional
  • Ruling identifies disparities between districts based on bonding capacity
  • Legislature found at fault, leadership plans to appeal ruling 

One school district boasts freshly renovated facilities, manicured turf fields and a new performing arts center, while another has hundreds of failing HVAC units and collapsed and leaking roofs. 

After years of litigation and discovery and a two-week bench trial in 2024, a Maricopa County Superior Court judge found the disparities in funding and subsequent state of school facilities across Arizona to be a constitutional failing, with blame falling squarely on the shoulders of the Legislature. 

“After carefully and thoroughly reviewing the record and considering the parties’ arguments, the Court concludes that the current public school capital finance system does not meet the constitutional minimum standards established by the Arizona Supreme Court,” Judge Dewain Fox wrote in a ruling on August 11. 

In 2017, four school districts, a taxpayer and three education organizations — the Arizona School Boards Association, the Arizona Education Association and the Arizona School Administrators — sued the state for facilitating an allegedly slow-moving and underfunded system that puts districts lacking the tax base and property wealth to pass bonds at a significant disadvantage in upkeep and condition of schools. 

The plaintiffs, represented by the Arizona Center for Law in the Public Interest, claimed the Legislature failed to meet obligations to provide a “general and uniform public school system” as provided in the state Constitution. One requires appropriate funds to ensure proper maintenance, development and improvement of all state educational institutions. 

The Arizona Center for Law in the Public Interest litigated the same issue before. It successfully argued that passing the buck to local taxpayers to pass bonds to cover school maintenance costs disadvantages low-income areas. 

In 1998, the Legislature enacted the Students FIRST Act and created the School Facilities Board to administer funds to cover capital needs across the state and determine a set of minimum adequacy guidelines to ensure schools could provide an environment conducive to achieving academic standards. 

The Legislature got off to a strong start, doling out about $1.2 billion to fix deficiencies in schools across the state and administer additional programs for building renewal and new facilities. 

But over time, appropriations to respective funds declined, or were repealed or modified in statute. 

For one, the Legislature changed Building Renewal funding from a formula structure based on the size and age of a facility to the Building Renewal Grant program, which excluded funds for any non-academic buildings and required that schools must fall below the minimum adequacy guidelines to qualify. 

Danny Adelman, attorney for the plaintiffs, said,“Initially, after those court rulings, they did it and fixed a lot of schools. And there were decent schools all throughout the state. And then just bit by bit, and then more than bit by bit, they started taking away all that funding until we’re largely right back where we were.” 

Adelman said the burden again falls to districts to seek bonds to make up the difference, which proves difficult for areas with low property wealth or with voters lacking a desire to greenlight a bond. 

“In either case, you’re just doing without,” Adelman said. 

In a 114-page ruling, Fox agreed with the plaintiffs that the state had failed to appropriate funds for the “establishment and maintenance of a general and uniform public school system,” in violation of the state Constitution.

Fox pointed out the Building Renewal grant program “routinely” lacks funding to complete approved projects and defers millions in repair year over year. 

Strapped funds make it so schools with “an eligible and urgent fire/life and safety” minimum adequacy guidelines (MAG) deficiency are pushed to the top, which creates a system that “guarantees that districts must operate below the MAG – often for significant periods of time – before state funding is provided to correct the deficiency,” Fox wrote.

And, because not all districts can secure bonds or override funds in the meantime, and solely rely on the Building Renewal Grant, they are left to “operate their schools in deficient facilities for months or even years while awaiting funding.” 

Fox’s ruling recounted schools with cracking walls, ceilings and floors, water damage, broken toilets and sinks, aging windows, failing HVAC units, collapsed and leaking roofs and sinkholes.

While others, with the bond capacity and voter base, could afford to fix deficiencies fast, as well as build and renovate schools and facilities. 

Fox found that the setup and lack of funding to the state system itself created the disparities, and it is therefore the responsibility of the Legislature to remedy them. 

In response to the ruling, the plaintiffs put out a joint statement. 

“Our state’s constitution requires the legislature to fund our public schools. It’s time for our legislature to fulfill its constitutional obligation to fund public schools in every corner of Arizona so that all students, whether or not they live in a wealthy area, can receive a quality public education.”

The court has yet to enter a final appealable judgment, but plans to do so soon. Fox noted, though, that he intends to grant a temporary stay while the issue makes its way through the appellate process. 

In a statement, Senate President Warren Petersen said, “We will appeal.” 

Adelman said the Legislature had “every right to do that,” but again made a plea for a more immediate fix. 

“They can say they’re going to appeal, but the evidence is the evidence, and the law is the law, and all they’re doing is digging the hole deeper,” Adelman said. 

He continued, “These roofs that are leaking, if they’re not fixed, it just causes more damage. And so when you do ultimately fix it, it’s more expensive, and there’s more things to fix, and there’s mold and you have to replace insulation, and it’s just not good management. They would never run their own buildings like that. They would never run their own businesses like that.” 

Education groups vow to campaign against school choice on Prop. 123

Key Points:
  • Republicans likely to unveil final Proposition 123 language on May 19 
  • Democrats, education groups oppose tying school choice to teacher pay proposal 
  • Opponents warn of lawsuits, campaigns if such a measure heads to voters 

A Republican-backed plan for Proposition 123, poised to raise teacher pay and create a constitutional protection for school choice, is likely to move through the Legislature on May 19. 

The goal was originally to push the plan through before both chambers took a prolonged recess, but Senate President Warren Petersen, R-Gilbert, and bill lead Sen. J.D. Mesnard, R-Chandler, said the caucus was still trying to reach consensus on the final language. 

“There’s still a few Is to dot and Ts to cross. And given the importance of this measure, and the interest level of the measure, whether folks are looking forward to it or not, I want to make sure we have it right,” Mesnard said. 

Anticipated movement on Prop. 123 comes after education groups and Democrats promised opposition to any plan that wraps in school choice protections, dashing any hopes of campaign support, drawing early lines in the sand and cementing a high likelihood the Republican majority’s proposal will pass on party lines.

School choice protections have long been part of the Prop. 123 conversation among Republicans, though any intersection of the two was deemed a nonstarter by Gov. Katie Hobbs and education groups. 

In a press conference on May 5, the Arizona Education Association, Save Our Schools Arizona and the House and Senate Democrats elevated their opposition and claimed any proposal tying teacher pay and school choice together is likely unconstitutional and unlikely to fly with voters.

“Prop. 123 is not a tool to be hijacked by Republicans to provide an untouchable lifeline to private school corporations,” Sen. Catherine Miranda, D-Laveen, said. 

With Prop. 123 set to expire at the end of the fiscal year, Mesnard, and Rep. Matt Gress, R-Phoenix, took the lead on retooling an education funding measure drawing on the state land trust fund to increase teacher pay. 

Ahead of the legislative session, Mesnard and Gress met with various stakeholders, including education groups and school choice proponents. Mesnard said meetings then moved into more one-on-one conversations, with a final proposal slowly coming together in tandem. 

An initial Prop. 123 package materialized in the House and Senate Education Committees in February, though with the caveat that negotiations were ongoing and a true final version would not come until later. 

Republicans have yet to unveil final language, but as it stands now, Mesnard said the Republican proposal would include about a $4,000 teacher raise, operating off a 6.9% distribution rate from the state land trust fund. Of that 6.9%, 4.5% of the distribution would be permanent and 2.4% would lapse in ten years. 

Teachers eligible for the raise would have to spend the majority of their time on classroom instruction and meet or exceed performance benchmarks set out in the state’s teacher evaluation process. 

In early April, Mesnard told the Arizona Capitol Times that the Republican caucus had been ironing out how exactly they wanted to incorporate school choice protections.

As of May 5, Mesnard said Republicans are still finalizing the language of the proposal, but that the main goal is “protecting what we have today — all the options that parents have from districts, charters, ESAs, open enrollment, private schools, online.” 

Hobbs’ spokesman Christian Slater called a Prop. 123 proposal incorporating school choice a “complete and total nonstarter,” in April. At a May 2 press conference, when asked if she would support such a proposal, Hobbs said, “absolutely not.” 

The Arizona Education Association, Save Our Schools Arizona and Democrat leadership convened on May 5 to say the same. 

Democrats and Save Our Schools Arizona staked out potential legal action under the state Constitution’s separate amendment clause, which requires voters to weigh in on distinct constitutional amendments separately.

Rep. Nancy Gutierrez, D-Tucson, said Democrats would rather see a clean continuation of Prop. 123 move forward. 

“It’s a false choice,” Gutierrez said. “These ideas don’t belong in the same bill.” 

“This was designed to prevent exactly what Republicans may be seeking to do — taking an unpopular issue and bundling it to a popular issue in an attempt to tie the hands of voters,” Miranda said. “Teacher pay increase is a popular issue, and our public schools have been seeking increased financial support from the Legislature for decades. However, universal private school vouchers funded by public money intended for public schools are not as popular. An overwhelming majority of families still choose public schools.” 

Sharon Kirsch, research director of Save Our Schools Arizona, similarly said the organization would have an attorney review any proposal from Republicans. 

“If it’s anything like what we’ve been hearing, what’s been reported, our message is: We’ll see it in court,” Kirsch said. 

Any lawsuit would have to come before the election. And as it stands now, Mesnard said the measure will likely run in November 2026. 

There is also the issue of support beyond the Legislature. 

Marisol Garcia, president of the Arizona Education Association, recalled that the last time Prop. 123 went to the ballot, it received broad support. She said if the proposal came out tied to school choice, the teachers’ union would be going on the offense in the form of an oppositional media campaign. 

Whether education groups would go as far as launching their own ballot measure in response to the Republican version of Prop. 123 is still up in the air. 

Garcia said, “Everything is on the table. Everything is always on the table. When it comes to education, when it comes to union work, everything has to be on the table.”

Mesnard said there are still myriad questions for Prop. 123’s passage beyond the Legislature, such as creating a campaign for public approval of the measure. 

“When you put something out there, especially something as important as this, something that I want to see pass as much as I want to see this pass, I’m sensitive to — who’s going to be our support? Who’s going to be our opposition? Is it going to be a state election? Are we going to see national money flowing in? How will this all play out?”

Mesnard said there had been preliminary conversations with groups supportive of school choice. 

Though he said it’s too early to put names of partners out there, he noted the familiar names pushing school choice, including the Goldwater Institute and the Free Enterprise Club. 

“It’s not entirely a shot in the dark, talking to groups out there that would be supportive based on the concepts we’re talking about,” Mesnard said. “We’ve been trying to lay the groundwork.” 

Daniel Adelman: The fight for Arizona’s Constitution

Daniel Adelman took up the helm at the Center for Law in the Public Interest in 2018. During his tenure, he led litigation to keep people housed during the pandemic, cut the Legislature’s ability to sneak provisions into budget bills, ensured funding for vital school facilities, and, most recently, challenged a $15 million pork appropriation to the Prescott Rodeo. As he transitions out of his role, he hopes his successor shares his passion for leaving the law better than he found it. 

What drew you to public accountability law? 

The school work was actually what drew me to the center. I joined the board in 1994 — the same year that the center won the first case that declared the way Arizona was financing its public schools as unconstitutional. I used to run this camp for underprivileged kids, and I used to go to the schools to meet with parents of these kids, so we could assure them their kids will be safe and everything. (The schools) were horrible. We won that case, and the state ended up putting in over a billion dollars fixing and building schools. I went back to those same schools, and they were nice … and it just drew me to the power of impact litigation and forcing the state to obey the Constitution.

How has the state changed in terms of compliance and constitutionality? 

In a lot of ways it really is worse than it’s ever been. 

Part of the reason that I really appreciate good journalism is people have to know what’s really going on, and if all you get is your social media feed, or all you look at are reporters that are going to agree with you and feed you whatever, it is really easy to try to take away people’s rights … I think that conspiracy-driven narrative is for real, and it’s taken hold, not by any means with all of the legislators, but with a lot of them.

Republicans were in charge of both houses (when I started), but everything was very fact driven. And people choose which facts they think are most important, and that’s fine, but it wasn’t all just fake, and I think that’s changed, and it’s scary.

Has your approach changed at all now that conspiratorial thinking has gained more legitimacy? 

It makes the law even more important, right? Because there’s this narrative that we’re increasing public school funding, and they’re just wasting it all on administration. And if all you’re doing is giving a press release, it’s super easy to say stuff like that. When you go to court, you have to prove it with evidence. There is no evidence to support that in Arizona. Arizona spends less on administration than every other state … I feel like it’s even more important with some of the battles between the different houses in the Legislature, or between the Legislature and the governor. There are times when you need a court and you need someone, like the reason. 

The center does pro-bono work. Why is that important? 

We advocate for people who otherwise would have no voice. We’re litigating the rodeo case. The reason we’re doing that case is the principle involved. There are these limitations in the Arizona Constitution. If the Legislature doesn’t follow them, all kinds of bad things can happen. It’s not just ‘Does a rodeo get the money or not?’ That isn’t the point. The point is, do they have to comply with the Constitution? Two residents who are just people in Prescott are the ones (who) retained us. It’s been a lot of work. They could never afford attorneys. Regular people could never afford that … The center, which is totally pro bono, it’s just this huge tool that gives regular citizens the power to challenge the legality of what’s going on.

How do your personal values lead you in the work you do? 

Family is hugely important to me. I have wonderful kids who are all adults now, and all successful and in wonderful stuff. I’m making sure that I am a good husband and a good dad, but also a good lawyer trying to make the world a better place. My parents are and were people who devoted their whole lives to making the world a better place. My dad was in the Air Force and a professor, and my mom was a principal. It was just a big part of everything we did, that our job here is to make the world a better place … that’s driven my whole career.

What are some of the concrete changes you’ve seen happen as a result of action the center has taken? 

When we did the budget reconciliation bill case, like you hear about that, and you think that is like the most boring constitutional law, who cares? But it was at the height of Covid and the things that they were putting in what were supposed to be budget bills had these really far reaching health consequences, and this emergency physician came up to me and just said, “You have no no idea how many lives you saved by having the Supreme Court rule that those things were unconstitutional.” A lot of doctors saved a lot of lives, not every lawyer gets to.

What parts of the cases you litigate stick with you? 

A lot of the witnesses in the school finance case, after they would testify about how bad it was and how they’ve been trying to get help fixing a roof, or whatever. Well, after they testified and they were in the case, that roof that they’ve been trying to get fixed for eight years suddenly got fixed.

Once you have these people under oath, they’re talking about what’s really happening. This isn’t somebody just saying something on social media. It’s like they really have skin in the game. The most frustrating thing is the kids are the ones who suffer from this. The people who are most responsible will never suffer any of the bad consequences of their decisions, like to not fund the capital needs of public schools. The children who have no responsibility for causing the problems, they’re the ones who suffer.

What are your next steps after the center? 

This has completely been a dream job for me, like it is exactly what I hoped it would be. And I feel like we’ve accomplished a lot of good things. There’s no shortage of public interest work in Arizona, but I’ve just been doing full time law for 38 years now. So it’s just time to kind of step back from the full time practice. I think I will continue to be involved in probably a fair amount of the center’s work … I plan to stay involved as the education finance case will likely be appealed no matter who wins. I put a lot into that case, and will certainly offer, like my predecessor did, to continue to help even after he stepped down. 

What are you looking forward to doing with a little more time? 

So I’m in a rock band. And I do plan to continue to do that and to do it some more. I have a bunch of hobbies, gardening, art, stuff like that. I’m hoping someday in the not too distant future to be a grandpa, and I plan to devote a lot of time to that, and I’ll probably stay in the law in some ways too. So yeah, I have a lot of interests. Excited. I definitely have both parts of my brain that like doing stuff.

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