Jan Brewer | Arizona Capitol Times

After 8 years, Ducey hands off a changed Arizona to Hobbs

Gov. Doug Ducey speaks during inauguration ceremonies at the Arizona Capitol in Phoenix. Ducey became the first governor since Bruce Babbitt, who left office in 1987, to complete two full, four-year terms. (AP Photo/Ross D. Franklin, File)

Former Gov. Doug Ducey officially turned over the governor’s office to Gov. Katie Hobbs on Monday, marking a shift in party power at the state’s highest office and the end of a lengthy and consequential era in Arizona politics.

Ducey, 58, becomes Arizona’s first governor since Bruce Babbit, who left office in 1987, to complete two full, four-year terms on the job. In eight years in office, Ducey presided over profound changes that will continue to affect the state for years to come.

The governor signed conservative policies into law on everything from economic policy to education during his time as the state’s top executive. Beginning next year, Arizonans in all income brackets will pay a flat 2.5% tax and many families will get taxpayer money to cover education expenses – both products of legislation backed by the governor.

In other areas, the ground has shifted under Ducey’s feet since he took office in 2015.

The “Red for Ed” movement that led teachers around the state to go on strike eventually led to pay increases for teachers that the governor approved in 2018. The Arizona Republican Party, now dominated by figures from the MAGA faction of the party aligned with former President Donald Trump, is almost unrecognizable from the state party that helped elect Ducey to two terms in the governor’s office.

Members of Arizona Educators United protest on April 10 as Gov. Doug Ducey gives his weekly KTAR interview. Dozens of teachers, students and other public education advocates marched outside as the temperature in Phoenix reached 100 degree for the first time this year. (Photo by Katie Campbell/Arizona Capitol Times) — Members of Arizona Educators United protest on April 10, 2018, as Gov. Doug Ducey gives his weekly KTAR interview. Dozens of teachers, students and other public education advocates marched outside as the temperature in Phoenix reached 100 degree for the first time this year. (Photo by Katie Campbell/Arizona Capitol Times)

Ducey frequently says that he’s left the state “better than (he) found it,” and he invariably cites Arizona’s economy as the prime example of his success.

“He did a great job with the economy. There’s no doubt about that,” said longtime Republican consultant Chuck Coughlin. Specifically, Coughlin said, Arizona has added jobs not just in traditional sectors like home-building and development, but in a diverse range of industries, particularly high-tech manufacturing.

The new manufacturing projects include battery and electric car makers who have set up shop in Pinal County and a semiconductor manufacturing plant that’s under construction in North Phoenix. Even President Joe Biden flew into Phoenix to help celebrate progress on the chip factory in December.

In terms of lawmaking, Ducey’s signature accomplishments mostly came near the end of his tenure, and they run the gamut of conservative policy priorities.

In 2022, his last legislative session, the governor signed a massive expansion of Arizona’s Empowerment Scholarship Account program, better known as school vouchers. The law removed eligibility requirements from the program, allowing any Arizona family to get state funds to cover their children’s education expenses, including tuition at private schools.

Also last year, lawmakers delivered a billion-dollar package based on the governor’s vision for bringing more water to the state: desalination. A board set up to administer the more than $1 billion investment (which will come out of state coffers over three years) has already taken steps that could lead to financially backing a desalination plant in Sonora, Mexico.

And in 2021, with the governor’s support, lawmakers passed the state’s historic flat tax.

Those moves were possible, in part, thanks to Arizona’s growing revenues and enviable financial surplus. In 2015, his first year in office, Ducey signed a slim $9 billion budget. In 2022, that figure had doubled to $18 billion, but still included provisions to top up the state’s rainy-day fund, which now comes to more than one billion dollars.

Daniel Scarpinato, a former chief of staff to the governor, credited the fiscal belt-tightening of Ducey’s first year – when the state faced a $700 million deficit – for paving the way for future spending packages.

“I don’t think that we’d be in the position today of being able to do all these things if that (the deficit) had lingered,” Scarpinato said.

The tax cuts and voucher expansion were, predictably, partisan endeavors, while the water project ultimately received widespread bipartisan support. In another area – public school funding – the governor’s legacy may still be up for debate.

Even though Ducey ultimately signed the 2018 law that aimed to increase public school teacher pay around the state by 20%, Arizona remains close to last in average teacher pay across the country and public school class sizes have continued to grow in recent years. Scarpinato said that the bottom line is that teachers got a significant raise while Ducey was governor.

But Stacy Pearson, a Democratic strategist, said Ducey shouldn’t be applauded for effectively restoring education funding that had been cut by former Gov. Jan Brewer, while allowing the state to remain far behind its peers.

“That he’s trying to get us to celebrate going from dead last to second-to-last, or third-to-last, is laughable,” she said.

Another important piece of legislation signed by Ducey might have a counterintuitive impact.

A 2022 abortion law (passed in anticipation of the Supreme Court overturning Roe v. Wade) bans abortion after the 15-week mark of a pregnancy except in medical emergencies, but it may actually have the effect of loosening abortion restrictions in Arizona. That’s because the Arizona Court of Appeals ruled last month that the 15-week ban supersedes a more restrictive state law that dates to the 19th century.

Outside of lawmaking, Ducey’s second term was largely defined by the Covid pandemic. Phoenix was one of the first cities to report a coronavirus case in January 2020 and, in March 2020, Ducey signed a series of emergency orders that largely shut down the state – closing schools, restaurants, gyms and other businesses.

But the lockdown was lifted abruptly in May and, that summer, the virus began spreading rapidly through the state. Hospitals were overwhelmed and thousands died, but the governor resisted calls to impose health and safety measures like a face mask mandate, arguing it would damage the state’s economy and that lockdowns imposed a toll on mental health.

By the time Ducey left office, more than 30,000 Arizonans had died of Covid and the state had the unwelcome distinction of the highest per capita Covid death rate of any state.

Gov. Claudia Pavlovich, Sonora, Mexico, and Gov. Doug Ducey, talk after a press conference Nov. 29, 2016, to announce Lucid Motors has agreed to open a plant in Casa Grande.

On border issues, Ducey in some ways brought a more restrained approach than his predecessor Brewer, who signed the controversial “show me your papers” law, SB 1070. He forged a close relationship with former Sonora governor Claudia Pavlovich and emphasized economic cooperation. But he also took some aggressive action aimed at border security.

He initiated the “border strike force” in 2015 – a program aimed at stopping drug trafficking that eventually came under criticism for failing to live up to its name. And in 2022 started busing migrants to liberal cities on the east coast and building a shipping-container border barrier without federal permission – until the federal government secured a legal agreement to take it down.

Ducey had the fortune of working with Republican-controlled legislatures during his time in office, but narrow majorities did lead to some conflict. In his final legislative session, he signed a budget that got bipartisan backing and included concessions to Democrats in the form of more public-school funding, after some hard-right lawmakers refused to get on board with Ducey’s budget plan.

The Arizona Supreme Court from left are Justices Bill Montgomery, John Lopez, Ann Scott Timmer (vice chief justice), Robert Brutinel (chief justice), Clint Bolick, James Beene, and Kathryn King.

Among other actions that will reverberate long after he’s gone, Ducey’s numerous judicial appointments mean his judgement will help shape how the state’s legal system functions for years to come.

Most notably, he expanded the Arizona Supreme Court from five to seven justices, though he insisted the move didn’t amount to court packing. As he leaves office, five of the justices are Ducey appointees. (The other two were appointed by Brewer.)

Even while Ducey was still in office, the justices had a hand in securing some of his most important policy accomplishments.

In 2021, the Arizona Supreme Court effectively quashed Proposition 208, a voter-approved initiative that would have raised taxes on high-earning Arizonans in order to provide more funding for public education. (The Arizona Supreme Court sent the case back to a trial court, but with instructions that basically forced the judge’s decision.) Had it taken effect, it would have significantly altered the flat tax program signed into law the same year.

Compared to Brewer, who fought bitterly with the legislature and memorably wagged an accusatory finger at then-President Barack Obama when he visited Arizona, Ducey took a more low-key approach and, at least publicly, didn’t pick many fights.

Even Pearson, for the most part a critic of the governor, gave Ducey credit for that.

“I may not agree with his policies, but the guy did exactly what he said he was going to do … and he did it without scandal,” she said.

Even so, Ducey had his own clash with a sitting president, in a moment that underscored the political shifts underway during his tenure.

In 2020, as he certified Arizona’s election results, he silenced a call from Trump, who at the time was ramping up his claims that the election had been marred by widespread fraud. That led to a rift between the two men and was part of a broader schism between Ducey and more hard-right elements of the Republican Party.

One question that remained unanswered as the governor’s office changed hands on Monday is what Ducey will do next. He declined to run for Arizona’s open U.S. Senate seat last year against Democratic incumbent Mark Kelly, but he has reportedly expressed interest in running the U.S. Chamber of Commerce. In interviews in recent weeks, the governor hasn’t offered hints about his future plans.

Editor’s note: This story was revised on Jan. 9, 2023 to include a passage on the Covid pandemic.

Arizona GOP fundraising drops significantly under Ward

Kelli Ward at a campaign rally in August 2018. (Photo by Gage Skidmore/Flickr)

The Arizona Democratic Party is out raising the state GOP by a lot.

New campaign finance reports show the Arizona Republican Party collected just $81,320 in the three months ending Sept. 30. By contrast Democrats raked in $347,841.

And this isn’t just a one-time problem.

An analysis by Capitol Media Services finds that Republicans managed just $382,582 for the first nine months of the year, including nearly $180,000 from political action committees. Democrats took in $641,345, with $339,312 from PACs.

“I think it’s too early to declare this some sort of crisis for the Republican Party,” said GOP political strategist Stan Barnes.

And the phenomenon is not new, with an energized Arizona Democratic Party bringing in more cash during the two-year 2018 election cycle than the Republicans, though by nowhere near the current disparity.

“But it’s fair to say the world’s going to be watching whether or not this leadership of the party can raise the kind of money necessary to be relevant,” Barnes said. “And that question still remains.”

That “leadership” issue refers to the decision by precinct committeemen in January to oust party Chairman Jonathan Lines, who had been the establishment favorite, in favor of the far more conservative and overt Trump supporter Kelli Ward.

Ward, a former state senator from Lake Havasu City, had failed in two prior attempts to gain statewide office: a primary challenge to U.S. Sen John McCain in 2016 and, just last year, her bid to become the Republican nominee for Senate in a primary eventually won by Martha McSally.

Political consultant Chuck Coughlin said that Ward’s history as a candidate – and an unsuccessful one at the statewide level – is part of what’s going on now with fundraising.

“It’s a different role,” he said of being the party chief.

“It’s really behind the scenes,” Coughlin said, with the party chair working closely with other elected officials “and being very servant-oriented to their needs and solicitous of their needs and desiring of their support.”

And Ward?

“She seems much more comfortable in front of the scenes,” Coughlin said.

That includes most recently her role in leading some anti-impeachment demonstrations. And Ward has taken a much higher public profile than her predecessors.

“Of course, that doesn’t sit well with major donors,” he said.

Zach Henry, spokesman for Ward and the state party, did not return repeated calls seeking comment.

But the issues for the GOP go beyond who is leading the party. There’s the Trump factor.

“The Donald Trump cloud over the state of Arizona is a consequence,” said Barnes. “And I think one of those consequences is traditional large-gift donors are unsure.”

None of that, he said, means that Trump himself is in danger of losing Arizona.

“But donors and their money are emotional people,” Barnes said. “And the president’s impact on some of those egos is probably meaningful and having an impact on contributions.”

Put another way, Barnes said the history of the GOP is that its fundraising has done better when the party apparatus was controlled by the more “country club establishment wing.”

Former state House Speaker Kirk Adams said that, in some ways, the lag in donations to the state party following Ward’s selection is not a surprise. He said that the ability of the party chair to connect with donors and rake in cash is built on relationships.

`Do you have existing relationships and do you have the ability to make new relationships?” he asked. “It’s a lot of work.

That, however, leaves the question of whether Ward will get to that point.

“I believe she has the ability to build relationships,” said Adams who until last year was chief of staff for Gov. Doug Ducey. “I don’t know that’s she’s doing it yet.”

Barnes thinks she’ll come around.

“It seems to take time for that new chairman to figure out where the love is among the contributors that support that chairman’s point of view or that chairman’s agenda,” he said. “I have long-term confidence that Kelli Ward is going to figure that out.”

So what’s the impact of the party having less money?

“You can’t win elections without money,” said former Republican Gov. Jan Brewer. She said it’s critically important now, on the heels of some key Democrat victories in 2018, “to help these candidates take back the seats that we lost last time.”

That includes trying to wrest control of the state’s congressional delegation, with Democrats holding five of the nine House seats, and the fact that the GOP edge in the state House slid by four, to the bare minimum 31-29.

And McSally hopes to hang on to the U.S. Senate seat that used to belong to McCain.

Still, Brewer said any reticence by GOP faithful to give to the party need not be fatal. She said there are other options.

One, said the former governor, is to give directly to the candidates. Brewer said donors also can write checks to the Republican National Committee.

Still, she said, that could be a hardship on some candidates.

“They’ve always counted on the party,” Brewer said.

Coughlin said there already are mechanisms in place to find other ways to help.

He noted that Senate President Karen Fann and House Speaker Rusty Bowers have formed what amounts to a political action committee to solicit donations for GOP legislative candidates. And consultant Nathan Sproul said the Trump re-election campaign is expected to pump major dollars into the state, with dollars also expected to flow in to keep that U.S. Senate seat from falling into Democrat hands as what happened last year with the election of Kyrsten Sinema.

Still, Coughlin said, it would be more efficient to have these kinds of campaigns coordinated by the party, even to the point that it gets a better rate on its postage.

“But if they’re not bringing anything to the table themselves, and particularly because it’s a caustic relationship with the other electeds, then maybe you rethink that.

Arizona on course to relive health care ordeal if Congress cuts Medicaid

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

Arizona already knows what will happen if its Medicaid program falters.

In 2011, the state froze enrollment for childless adults in its Medicaid system, leading to more than 160,000 left without coverage in a relatively short amount of time.

And before that, Arizona stopped covering certain procedures for Medicaid enrollees as a cost-saving measure, including transplant services. That cut quickly led to death for some patients.

More would have lost coverage had Arizona not restored the cuts and expanded its Medicaid program in 2013.

News stories from 2010 and 2011 showed the faces of those affected – transplant patients who died; people who lost coverage and worried about their futures; hospitals that warned they could close as their costs skyrocketed because of uncovered care.

Former Gov. Jan Brewer, who spearheaded the cuts, said she still thinks about the people affected and that the decision “broke her heart.” But she had a major budget deficit stemming from the Great Recession, and she had no choice but to cut, she said.

“I can tell you, it’s an awful memory for me. … I would hate to see that happen to the state again,” Brewer told the Arizona Capitol Times.

But it could happen again in Arizona if the Republican-controlled Congress passes a health plan that cuts payments to states for Medicaid over the next several years. And Arizona’s past experience could serve as a cautionary tale for what could happen across the country.

The U.S. Senate Republicans’ Better Care Reconciliation Act, the GOP’s repeal-and-replace plan, was on track for a vote this week. But Senate Majority Leader Mitch McConnell, R-Kentucky, delayed the vote at least until next week as it became clear it didn’t have the needed votes to pass.

The Senate plan cuts deeper than a previous House version in the long run by tying spending on Medicaid expansion to a slower growth rate, although the expansion won’t fully end until five years from now.

The bill will allow expansion states like Arizona to get funding through 2023, although that amount will be reduced beginning in 2021. Depending on how much it’s reduced, the state’s Medicaid program, Arizona Health Care Cost Containment System, could run into trouble as early as 2021, since the Arizona law expanding the program ends the expansion if federal funding falls below 80 percent.

The Senate bill would also limit how much the feds pay for each Medicaid enrollee, a worry not just for expansion states.

That would force the state into two corners: Fill the funding gap by raising money locally, or cut back on coverage.

And in Arizona’s typically tax-averse Legislature, the latter option looms large.

The Congressional Budget Office estimated the bill would lead to 22 million more uninsured people by 2026 than under current Affordable Care Act requirements, mostly because of the end of ACA mandates on coverage.

The bill would cost Arizona at least $2.9 billion over the next eight years and potentially as much as $7.1 billion, an analysis by AHCCCS shows.

If the state didn’t increase its spending on the program, more than 400,000 people who were covered through Medicaid expansion under the ACA could lose their insurance.

And for a portion of that population, the situation is much more dire. Nearly 29,000 of them have cancer or tumors, according to AHCCCS. More than 80,000 have mental health issues, 11,000 of whom are seriously mentally ill.

Rep. Heather Carter, R-Cave Creek, said that for Arizona, it’s not a theoretical exercise of what could happen if Medicaid shrinks.

“We froze it. We know what happened. It was not good,” Carter said.

The effects were particularly acute in rural areas, Carter said. People in rural Arizona frequently have to travel farther to get care at the few hospitals and clinics in their areas. Much of the population these medical facilities serve uses Medicaid or Medicare, so the hospitals saw their costs increase rapidly as people lost Medicaid coverage and showed up in the emergency rooms, Carter said.

And if the financial situation for rural hospitals gets worse, people get laid off from well-paying jobs at those facilities, which are some of the larger employers in less-populated areas, she said.

Carter wants people to understand: If the Senate plan passes, the entire Arizona budget gets thrown for a loop. So while someone may not care about the health care plan or may not be directly affected, their priorities get thrown into the mix, too, she said.

“An impact like this in one sector of our state budget will impact our entire state budget. If you care a great deal about paying teachers more, it’s time to pay attention to the health care bill,” Carter said. “Everybody needs to pay attention to what’s happening because this is going to have far-reaching effects.”

Rep. Randall Friese, D-Tucson, a trauma surgeon, said that when people lose health insurance, they either end up using emergency rooms more, or they put off treatments until their problem is more advanced, making it both harder to treat and more expensive.

“We can’t just simply save a dollar today and spend $10 down the road,” Friese said.

Matthew Benson, who was Brewer’s spokesman, said 2011 was an “extraordinarily difficult time” for him and the Brewer administration. They could see the immediate effects of health care cuts by watching the news each night. It was real, tangible.

Benson serves as a spokesman for the Arizona Hospital and Healthcare Association, though he was not speaking on their behalf for this article.

He predicted Arizona would see similar effects as it did in 2011 if Medicaid costs get shifted to the state. People fell off the Medicaid rolls swiftly here because that Medicaid population moves to other jobs and locations, making their income jump up and down frequently, he said.

“Arizona has a unique experience in terms of being a state that froze its Medicaid enrollment, so we know what happens,” he said.

Will Humble, who was director of the Arizona Department of Health Services when the cuts were made, said that, while the recession was painful in many ways with job cuts and payroll challenges, the human cost of the Medicaid freeze was toughest.

He thinks that, at least in some way, some of the subsequent problems the state saw with a swell in its child welfare system relate to the Medicaid cuts. People who had health problems couldn’t get help. They couldn’t take care of themselves or their children, he said.

“People lost their lives. People lost quality of life. Families broke up because of lack of treatment for substance abuse. Kids ended up in foster care,” Humble said.

Arizona was in the midst of the recession then, and cuts to programs, while tough to stomach, helped fill a budget hole, Humble said. But the state is not in that position now – the state had money to spend in its last budget – and yet the policy prescriptions that could be forced upon Arizona are the same, he said.

“It’s sad to see that the debate is now back, basically, where we were all those years ago during the recession,” Humble said.

For Brewer, the cuts were a “nightmare” and among the most difficult decisions of her time in office. She chose to push for a restoration and expansion of Medicaid in 2013 and called it a “joyful day” when the expansion passed. She doesn’t regret it, despite the political fallout she experienced from within her party.

She wants Congress to take a step back. Talk to everyone who could help craft a great health plan. Don’t be secretive. Slow it down.

Most importantly: Be more thoughtful. Tread lightly. People’s lives are on the line.

“I just can’t stand the thought that, here we go again,” she said.

Brewer, who was one of President Donald Trump’s Arizona surrogates, said she has tried to talk with people in Washington about what she learned when Medicaid was cut before in Arizona.

“I get the impression that the train has left the station,” she said. “I hope that somebody might be listening.”

Arizona Supreme Court upholds Medicaid expansion

The Arizona Supreme Court from left are Robert Brutinel, John Lopez, John Pelander, Scott Bales, Andrew Gould, Clint Bolick, Ann Scott Timmer. — The Arizona Supreme Court from left are Robert Brutinel, John Lopez, John Pelander, Scott Bales, Andrew Gould, Clint Bolick and Ann Scott Timmer. Bolick disqualified himself in the Medicaid ruling because he used to work for the Goldwater Institute, the organization that brought the legal action.

The state’s high court on Friday upheld the legality of an assessment on hospitals that helps pay for health care for 400,000 Arizonans.

In a unanimous decision, the justices rejected the contention by the lawyer for some Republican lawmakers that the levy, approved by the Legislature in 2013, was illegally enacted.

Attorney Christina Sandefur of the Goldwater Institute argued that it really was a tax, making it subject to a 1992 voter-approved constitutional amendment requiring a two-thirds vote in both the House and Senate. The levy passed with a simple majority.

But Chief Justice Scott Bales, writing for the court, said the assessment does not fit within the legal definition of what is a “tax” subject to the supermajority requirement.

He also said the constitutional provision does not apply in cases of assessments approved not by lawmakers but instead by a state agency. That, Bales said, is the case with the $290 million being raised here, with the levy being imposed on hospitals by the director of the Arizona Health Care Cost Containment System, the state’s Medicaid program.

And the justices also rejected Sandefur’s arguments that even if the assessment is imposed by the director, the authorization for the director should have been approved by a two-thirds vote in the first place. The justices said that’s not the way the constitution is worded.

Sandefur blasted the ruling, calling it “a major blow to taxpayer rights.”

“Essentially what this court has done is created a very dangerous loophole,” she told Capitol Media Services.

“It allows legislators to call taxes ‘assessments’ and give away the taxing power to an unelected and unaccountable administrator,” Sandefur said. “We believe this is exactly the opposite of what the voters intended.”

She said voters who want to plug that loophole will need to go back to the ballot with a new amendment.

House Speaker J.D. Mesnard, who opposed the Medicaid expansion and was one of the lawmakers who sued to overturn the levy, said he does not think voters wanted the exception to the supermajority requirement that the high court says exists.

“It is clear Arizonans support requiring a two-thirds vote of the Legislature when taking more of their money,” he said. And Mesnard said that’s particularly true in cases like this involving hundreds of millions of dollars a year.

But Mesnard said he’s not sure at this point if it will take yet another constitutional amendment to cure the problem.

“It will be incumbent on the Legislature moving forward to resist the temptation to use the court’s opinion in this case to circumvent the taxpayer protections intended,” he said. “We must not abuse the flexibility they have given us.”

Friday’s ruling is more than an assurance that government-paid healthcare will continue for the nearly 400,000 Arizonans who were added to the state’s Medicaid rolls because of the assessment. It also is a significant victory for former Gov. Jan Brewer who came up with the plan to expand the state’s Medicaid program.

“Medicaid restoration honored the will of the voters, saved lives, prevented rural hospitals from closing and preserved the Arizona economy,” the former governor said in a statement.

But the ruling is more mixed for current Gov. Doug Ducey.

On one hand, Ducey’s administration defended the legality of the assessment in court.

But Ducey, who was state treasurer at the time of the 2013 vote, never wanted the expansion of Medicaid, actively opposing the legislation. In fact, he charged that Scott Smith, his foe in the 2014 Republican gubernatorial primary, was too liberal on Medicaid expansion.

That ambivalence was reflected in Ducey’s own statement.

“The court has spoken, and I respect its ruling,” the governor said. “The state of Arizona will continue to follow the law passed by the Legislature in 2013.”

It was Brewer who decided in 2013 to take advantage of a provision of the Affordable Care Act to expand Medicaid coverage.

That law provided for the federal government to pick up most of the costs for expanding health coverage to those earning up to 138 percent of the federal poverty level, currently about $28,180 for a family of three. Before expansion, AHCCCS covered only those below the poverty line, or $20,420 at current levels for the same-size family.

But to qualify for those federal dollars, the state had to first restore coverage for childless adults. Enrollment for them had been frozen years earlier in a budget-savings maneuver.

To cover that cost and other state expenses, Brewer proposed giving Betlach authority to impose a charge on hospitals.

Hospitals did not object because Betlach crafted the levy so that every hospital chain actually would make money from the deal: More patients with government-provided insurance coverage means fewer bills written off as bad debt because of a person’s inability to pay.

The plan was adopted by a simple majority of the House and Senate, with the Republican governor cobbling together a coalition of Democrats and some members of her own party to vote for it.

But the Republican lawmakers who voted against expansion sued, contending the levy was illegally enacted. And enough of them opposed the assessment to block it if it actually required a two-thirds vote.

Sandefur told the justice at arguments last month that 1992 constitutional amendment requires a supermajority for anything that increases state revenues. But the high court did not see it that way.

Bales said the mandate first applies to “the imposition of any new tax.”

He conceded that word is not defined. But Bales said he and his colleagues said they do not believe it applies in this case.

“The assessment is imposed only on hospitals, which cannot pass on the costs to patients or third-party payors,” Bales wrote. And he noted the director even was given the power to exempt certain hospitals who might not benefit because they take few Medicaid patients, like the Mayo Clinic.

And Bales said while the levy does serve a broad public purpose — more people with health insurance — it was designed to provide financial relief to hospitals, the very group paying it.

The justices also dismissed Sandefur’s contention that it takes a two-thirds vote for the Legislature to authorize a state agency to impose a fee in the first place. They said that’s not the way the 1992 amendment is worded.

That leads back to Sandefur’s belief that another amendment may be necessary.

“It’s important to go back to the voters and make sure that their voice, which they made loud and clear over 25 years ago, is actually heard,” she said. “It’s a shame that the voters would have to do that and would have to clarify to the court that when they said that a two-thirds supermajority should be required for any revenue-raising measures, that they meant it.”

Asylum reform another common sense Trump policy to secure border

Despite the best efforts of obstructionist Democrats in Congress, President Trump is winning the fight to secure the border and keep American communities safe.

Since last October, more than 800,000 illegal immigrants have been apprehended at the southern border, exacerbating the humanitarian crisis by overwhelming the finite resources of our immigration enforcement agencies. While the Democrats demagogue the issue with patently false claims about “concentration camps” and exploit migrant children as political props, the Trump administration has focused on taking meaningful actions to address the problem.

With some radical House Democrats even opposing a recent humanitarian aid package to give Border Patrol and ICE the funding they need to care for the recent surge in illegal immigration, President Trump has had to do almost all of the heavy lifting on his own.

The recent enforcement agreement with Mexico, for instance, came about solely due to the President’s initiative. That deal, under which Mexico agreed to house asylum-seekers until their cases are adjudicated and deploy thousands of national guard troops to stop illegal migrants, is already making a meaningful dent in the number of illegal immigrants crossing our southern border after just a few short weeks.

The administration’s newest initiative, announced earlier this month, is designed to limit false asylum claims, which have been on the rise in recent years as illegal immigrants have increasingly sought to use asylum as a loophole to gain easy access to the United States.

The American people generously offer safe haven to foreigners facing extraordinary circumstances, such as political or religious persecution in their homelands. Asylum laws are meant as an exception to general immigration laws, but in recent years liberals have been actively encouraging ordinary economic migrants – those who simply wish to take advantage of the superior economic opportunities available in America – to claim asylum because it exempts them from detention and deportation while their claims are processed.

As a result, asylum claims have risen by almost 1,700 percent over the past decade, overwhelming our immigration courts and creating a backlog of cases that is forcing judges to schedule hearings years in advance. When the asylum claims are finally adjudicated, about 80 percent of them are rejected for failing to meet the necessary criteria.

False and fraudulent asylum claims do a grave disservice to political dissidents and religious minorities around the world who desperately need and truly deserve asylum protection. Living in a bad neighborhood or having limited work opportunities simply does not compare to the experience of risking torture or execution simply because of one’s political or religious viewpoints.

Fortunately, the Trump administration recognizes the gravity of the situation, and is taking steps to curtail the number of phony asylum claims from Central American economic refugees.

The new rules require migrants to apply for asylum in the first safe country they enter, such as Mexico, rather than hopscotching to the United States as their preferred destination. This will ensure that our generous asylum policies are available to those who truly need them, but not to those who wish to exploit them for economic gain. This is a common sense policy. Migrants can realize economic opportunities in the nearest country to them if it welcomes them on that basis, not the farthest. The regulation also prevents illegal immigrants from making asylum claims after they’ve been apprehended within our borders, a practice that has become increasingly routine in response to President Trump’s effective measures to improve border security.

The decision to crack down on asylum abuse has received contradictory rulings from the courts. On the same day that one federal judge upheld the new rules, another notoriously liberal judge issued a nationwide injunction preventing the regulation from taking effect. The injunction will likely be overturned on appeal, but for the time being it’s preventing the president from using the single most effective tool on the border at his disposal.

Once the regulation overcomes liberal legal challenges, though, the days of migrant caravans marching through Mexico to the U.S. border will be over.

President Trump has employed bold and creative measures to resolve the humanitarian and national security crisis on our southern border, and the new asylum rules are among the most important initiatives he’s taken so far. Despite Democrat obstructionism in Congress and interference from liberal judges, the President is winning the fight to secure the border.

Jan Brewer is the former Governor of Arizona

Audit attorney asks for secrecy of policies, procedures

Cyber Ninjas owner Doug Logan, left, a Florida-based consultancy, and former Arizona Secretary of State Ken Bennett, right, talk about overseeing a 2020 election ballot audit at the Arizona Veterans Memorial Coliseum, during a news conference Thursday, April 22, 2021, in Phoenix. The equipment used in the November election won by President Joe Biden and the 2.1 million ballots were moved to the site Thursday so Republicans in the state Senate who have expressed uncertainty that Biden's victory was legitimate can recount them and audit the results. (AP Photo/Ross D. Franklin) — Cyber Ninjas owner Doug Logan, left, a Florida-based consultancy, and former Arizona Secretary of State Ken Bennett, right, talk about overseeing a 2020 election ballot audit at the Arizona Veterans Memorial Coliseum, during a news conference Thursday, April 22, 2021, in Phoenix. The equipment used in the November election won by President Joe Biden and the 2.1 million ballots were moved to the site Thursday so Republicans in the state Senate who have expressed uncertainty that Biden’s victory was legitimate can recount them and audit the results. (AP Photo/Ross D. Franklin)

The attorney for the private firm hired by the Senate to audit the 2020 election is trying to deny public access to the policies and procedures they are using to audit the returns.

And Alexander Kolodin, who represents Cyber Ninjas, also contends the firm is not required to ensure that the 2.1 million ballots they have are being reviewed by bipartisan teams.

In new legal filings, Kolodin said he is providing the information demanded last week by Maricopa County Superior Court Judge Christopher Coury after the Arizona Democratic Party filed suit. That ranges from how the company ensures the chain of custody for the 2.1 million ballots it now has as well as the election equipment turned over by Maricopa County to issues of signature verification.

But he contends it is not in the public interest to let Arizonans see them.

“It is no secret that this audit is an emotional issue,” Kolodin wrote. “There exists a subset of individuals that might utilize such documents as a roadmap to breach the audit’s security and thereby cause the very harms (the Democratic Party) ostensibly seek to prevent.”

Anyway, he argued, the documents about the firm’s practices contain “trade secrets.”

The move is drawing opposition from the First Amendment Coalition, which represents various media organizations.

In his own legal filing, attorney Dan Barr said there is a presumption that all records, including those produced in litigation, are public.

He acknowledged there are some exceptions. But Barr said the claim by Cyber Ninjas that all of its policies constitute trade secrets holds no water.

If there are valid concerns, he said, the company could file a redacted version, with all the secrets blacked out, with a full version filed with that court. That, Barr said, would let a judge determine if any of this really needs to be withheld from the public.

“It is difficult to conceive of a case that warrants transparency more than this one,” he wrote, noting that Cyber Ninjas is a private firm which has “unfettered access” to the ballots and to information about Maricopa County voters.

“The public, especially 2.1 million Maricopa County voters, has a personal stake in knowing how Cyber Ninjas handles their personal information, including names, addresses, and signatures and whether their fundamental right to have their vote remain secret shall be preserved,” Barr wrote. “The public also maintains an exceedingly important interest in knowing that the integrity of the election and their votes will not be compromised.”

And Barr said this is especially critical given that Cyber Ninjas has never conducted an election audit and that Doug Logan, its CEO, has “a history of overt partisanship in favor of the presidential candidate who lost the election.”

All this comes amid questions about how the audit is being conducted.

The Democratic Party lawsuit contends that the processes being used by Cyber Ninjas to review the ballots and the election equipment violates various election laws. It’s attorney, Roopali Desai, wants a judge to halt the process unless and until the company — and the Senate which hired it — can show there are safeguards in place to protect the security of the ballots and the equipment.

That question of how the audit is being conducted and whether it is fair also figure into Kolodin’s claim that Cyber Ninjas is not required to have bipartisan panels review the ballots they are counting.

Kolodin acknowledged that state law requires the election boards that review ballots to have “as equal as practicable representation of the members of the two largest parties” on these review panels.

But Kolodin said that, as far as his client is concerned, that doesn’t apply.

“Cyber Ninjas, however, is not an election board and has not been hired to conduct an election for the purpose of declaring candidates elected or not elected,” he wrote. Instead, Kolodin said, the firm was hired to develop a report for the Senate about the conduct of the 2020 election, information he said the Senate can use to decide whether to enact changes to the law.

And Kolodin said, his client can’t make such decisions.

“Unlike a board of elections, Cyber Ninjas, as a government contractor, and like a government in other contexts, does not believe it is required, or even permitted, to make hiring decisions on the basis of political affiliation,” he said.

Anyway, Kolodin said, finding Democrats has proven difficult after Raquel Teran, who chairs the party, announced that it would not participate in what it sees as “sham audits.”

“The Arizona Democratic Party certainly has a First Amendment right to instruct its members not to participate in the audit,” he said. Yet at the same time, Kolodin noted, the party filed suit seeking to halt the audit because it was not being conducted in a lawful manner.

“Seeking to have this court compel equal representation of Democrats on the counting floor while working to make that impossible is not good faith litigation conduct,” he said, and can’t be used to stop the audit until it meets certain standards.

A hearing had been scheduled on the issues for Monday. But that was before Maricopa County Christopher Coury, a 2010 appointee of Republican Gov. Jan Brewer, realized that one of the attorneys working with Kolodin had done some work with his office.

Coury disqualified himself, and the case was reassigned to Judge Daniel Martin, a 2007 appointee of Gov. Janet Napolitano, who has yet to set a new hearing.

Brnovich argues state trumps feds in DACA driver’s license case

Attorney General Mark Brnovich lashed out at the Trump administration for asking the U.S. Supreme Court to reject Arizona’s bid to deny driver’s licenses to “dreamers.”

In legal papers filed with the high court, Brnovich accused the Department of Justice of being “surprisingly dismissive” of his arguments that a federal appellate court ruling requiring the state to issue licenses is impinging on state sovereignty. And he says the Trump administration appears to be

Arizona Attorney General Mark Brnovich (Photo by Katie Campbell/Arizona Capitol Times)

willing to, in effect, throw Arizona under the bus to advance its own arguments about the legality of the president’s efforts to rescind the Deferred Action for Childhood Arrivals program.

The filing comes after Noel Francisco, the federal solicitor general, told the justices they should deny Brnovich’s plea to review the appellate court ruling that went against Arizona and voided the 2012 state policy of declaring that dreamers have no legal right to a license. Francisco said there is no reason to believe the appellate court reached the wrong conclusion based on the evidence before it.

More significant, he said Arizona is legally wrong.

Francisco also pointed out that Arizona appears to be the only state in the country that is denying licenses to DACA recipients.

Brnovich, in his legal response, told the justices they should ignore that argument.

“This case is about much more than driver’s licenses,” he said. “It asks whether the two-dimensional division of power at the core of our Constitution can be collapsed into the president alone.”

That goes to Brnovich’s contention that the Obama administration had no right to create DACA in the first place absent congressional authorization.

Under that program, people who were brought to the United States illegally as children were granted the right to stay if they met certain conditions. They also were permitted to work.

At last count the government had accepted more than 900,000 applications, with about 807,000 approved, including more than 28,000 in Arizona.

The state Department of Transportation initially denied licenses to those in the program. Jan Brewer, then the governor, cited a 1996 provision of state law that licenses are available only to those whose presence in the country is “authorized by federal law.”

Brnovich is taking the position that DACA is not federal law but instead simply a policy of allowing people to remain. He said dreamers technically remain in this country illegally.

A divided federal appellate court disagreed, saying Arizona’s policy of denying licenses to dreamers was preempted by federal law. That sent Brnovich to the U.S. Supreme Court to seek relief.

Before ruling, however, the court wanted to hear the thoughts of the Department of Justice. That is what Francisco filed last month — and which Brnovich now wants the high court to brush aside.

In his filing, Brnovich said there is a fundamental problem with leaving the appellate court ruling undisturbed.

“DACA can be one of two things,” he told the justices.

On one hand, Brnovich said it could be advice of the administration to the Department of Homeland Security to not seek out and deport dreamers. The only other option is that it is a “substantive change in the law” enacted solely by the president and “in violation of the Constitution.”

“Either way, preemption is impossible,” Brnovich said, telling the justices they need to vindicate the separation of powers.

Brnovich also noted that when Francisco filed his comments the Department of Justice was in the middle of asking the Supreme Court to hear arguments by the Trump administration that it has the legal right to rescind DACA. He said that the administration, in asking the court to rebuff Arizona’s bid for relief, was “eager to advance its own extraordinary petition” and “make that extraordinary petition appear necessary.”

And Brnovich said the Trump administration, in filing legal papers against Arizona’s petition for review, was not only “focused on its own project” rather than the merits of the state’s case, but also failed to actually analyze the legal issues in that case.

The justices are expected to review all the legal filings later this month.

Brutinel elected as next Arizona Supreme Court chief justice

The Arizona Supreme Court’s justices have elected Justice Robert M. Brutinel as their next chief justice and Justice Ann A. Scott Timmer to serve as vice chief justice for five-year terms starting July 1.

The results of voting Monday by the seven justices will have Brutinel replacing Justice Scott Bales as chief justice and Timmer replacing Brutinel as vice chief justices.

Brutinel is a former Yavapai County Superior Court judge appointed a justice in 2010 by then-Gov. Jan Brewer.

Timmer is a former state Court of Appeals judge who Brewer appointed to the high court in 2012.

Bales is a former state solicitor general who was appointed to the Supreme Court in 2005 by then-Gov. Janet Napolitano.

Budget impasse triggers talk of shutdown

If Arizona’s government were ever to shut down, 2021 would be the year.

Budget impasses have pushed the state near the breaking point before, including a long summer night 12 years ago when the Legislature blew past the end of the fiscal year and delivered budget bills to then-Gov. Jan Brewer just after sunrise on July 1, 2009.

But this year, as the unstoppable force of Gov. Doug Ducey’s desire for massive income tax cuts collides with the unmovable object of 47 Republican legislators who each effectively have veto power of their own, the end of the fiscal year is easier to see than any path to budget passage.

“When you cross into June, I think it’s certainly in the backs, and maybe not even the backs anymore, of everybody’s mind,” said Sen. J.D. Mesnard, R-Chandler. “When the session started, just knowing that we’d never faced this political balance before, a situation like this was always possible.”

If July 1 comes with no budget deal in place, Arizonans will likely see a local version of a scenario that’s played out multiple times in D.C. over the past several years. State parks would close indefinitely, construction would stop, non-essential government employees would be sent home until lawmakers and Ducey could reach a deal.

Clock Strikes 12, But…

The closest Arizona has come in recent years to seeing the government shutdown was in 2009, when the House and Senate passed their budget bills early the morning of July 1 and ignored the clocks and calendars showing the fiscal year was over. The Legislature came close in 1992, as well, under Gov. Fife Symington.

Brewer ended up vetoing the bulk of the budget bills in 2009, and calling lawmakers back for a special session, but she signed enough to keep the government running until a budget landed on her desk.

In this July 6, 2009, file picture, Arizona state Sen. Jorge Garcia, D-Tucson, right, talks with fellow senators Manny Alvarez, D-Cochise County, left, and Leah Landrum Taylor, D-Phoenix, on the Senate floor during a special session at the Arizona State Capitol in Phoenix. Arizona's part-time legislators are on the job in midsummer after their inability to work out an on-time solution to the state's budget trouble led them to crack a barrier they hoped to avoid. This year’s Legislature is coming dangerously close to missing the June 30, 2021, deadline to pass a budget. PHOTO BY ROSS D. FRANKLIN/ASSOCIATED PRESS — In this July 6, 2009, file picture, Arizona state Sen. Jorge Garcia, D-Tucson, right, talks with fellow senators Manny Alvarez, D-Cochise County, left, and Leah Landrum Taylor, D-Phoenix, on the Senate floor during a special session at the Arizona State Capitol in Phoenix. Arizona’s part-time legislators are on the job in midsummer after their inability to work out an on-time solution to the state’s budget trouble led them to crack a barrier they hoped to avoid. This year’s Legislature is coming dangerously close to missing the June 30, 2021, deadline to pass a budget. PHOTO BY ROSS D. FRANKLIN/ASSOCIATED PRESS

Mesnard, a Chandler Republican who worked on Senate staff in 2009, recalled that the Legislature just managed to pass a budget without any idea whether Brewer would sign or veto it.

“We were prepared for anything,” he said. “But what she did blunted the full impact of a shutdown, while also forcing negotiations to continuation.”

Brewer’s actions saved the state from having to deal with questions, including whether government employees who wouldn’t be allowed to work during a shutdown would receive back pay or be forced to use their vacation time for the days they couldn’t work, Mesnard said.

Beth Lewallen of Italicized Consulting was also a legislative staffer in 2009 under then-Senate President Bob Burns. She said everything came together in the eleventh hour, when lawmakers sent the budget to Brewer and the governor vetoed budget reconciliation bills and line-item vetoed a good chunk of the appropriations bill.

“She kept the funding in place to keep the government going without the additional detail in the BRBs and there were some big chunks that she line-item vetoed out, and then brought everybody back to the table,” Lewallen said.

Lewallen, who still closely follows the legislative process, said there are many similarities between 2009 and today. While she doesn’t think a shutdown will happen this year, she said the possibility is still concerning.

“I don’t think anyone really can quite prepare for how widespread that would be if it ever really did shut down,” she said, adding that there will be a lot of pressure to go around, but most will be on Ducey, who she said she can never see just letting a shutdown happen.

For instance, Lewallen recalled Ducey refusing to let the Grand Canyon close during a federal government shutdown in 2019, when he declared that Arizona would function if Washington, D.C., didn’t. Letting state parks close going into the Fourth of July weekend would be particularly bad, she said.

Federal Funds Shell Game

Some major state agencies would be able to continue providing services through a shutdown because they receive funding from outside the General Fund, said Will Humble, former state health director under Brewer.

The Department of Health Services receives federal funding and has employees that are paid with federal dollars, which means they could continue to work through any state shutdown. The agencies could also temporarily use federal grants to supplant state funding for other employees’ salaries.

“One of the things that you could do – and is kind of a shell game – where let’s say your chief procurement officer is on state money, and you have these important procurements that you have to get out, then you would switch their funding source to a federal grant temporarily and then you could pay it back later,” Humble said, adding that there are a couple other ways to go around the loss of state money on a short-term basis, if necessary.

Humble remembered meeting with Brewer’s staff and other agency heads to prepare a “short-term intervention,” where he said he was thinking about who on staff was paid from federal dollars

Overall, he said the Department of Corrections might be the agency with the most to worry about, but as long as the state manages to pass a budget soon after the end of the fiscal year, nobody except state employees would be in real danger.

“What actually happens in state government is you’ve got all these contracts that are out for these different services that people are providing for you, and you’ve encumbered that money, and then most of those contracts are cost reimbursement,” Humble said. “So, they provide the services, and then they turn in their reimbursement, and then they get paid after the fact. You could be well into the next fiscal year before the bills come due from the previous fiscal year on your contract.”

In 2009, DHS planned to use state Lottery funds to cover any funding gaps. Humble said DHS could now rely on the Medical Marijuana Fund, if it wanted to.

A Piece of the Surplus

Childrens Action Alliance CEO David Lujan, who was the House minority leader in 2009, joked that he tried to block out memories of the year and its many special sessions and budget shortfalls.

Throughout that year, Lujan remembers the Capitol being full of uncertainty about what would happen if the governor and Legislature couldn’t reach an agreement. At the time, Brewer was pushing for a ballot referral for a 1-cent sales tax increase for education and Republicans who controlled the Legislature balked.

In 2009, lawmakers faced a budget shortfall of $1.6 billion and growing. This year, state budget analysts predict a surplus of $2.6 billion, but Lujan said that only makes passing a budget more difficult.

“When you have a budget shortfall, all you can really do is cut, but when you have a budget surplus, you then have that contrasting argument of tax cuts versus more investments in state government,” he said. “You’re going to have these two very different opinions about how we should be using this revenue surplus, and then complicating that, you have very narrow majorities in both chambers.”

Ultimately, Republicans are probably going to have to work with at least a few Democrats to stave off a shutdown, Lujan said.

“The type of budget that they have put forward is something that you would typically see if they had a much larger majority,” he said. “It seems like it’s going to be very difficult to pass a flat tax, and the magnitude of tax cuts that could have the ability to decimate our future in this manner, with just a simple majority.”

Child abuse investigation backlog soars

Once again, the Department of Child Safety has fallen behind on child abuse and neglect investigations.

The latest department report reflects unfilled staff positions, a high number of open cases, and many children in out-of-home care. DCS has set benchmarks for the number of employees and the number of cases they manage. Currently, the number of cases far exceeds these benchmarks, and the number of workers falls short.

At the beginning of this year, DCS had 95 backlogged cases, which are open and inactive investigations. Now, the number has shot up to 1,879 cases, exceeding the benchmark of 1,000 set by the Legislature.

Rep. Kelli Butler, D-Paradise Valley, said it’s extremely troubling to see the department fail to meet benchmarks.

“Those are children whose lives are potentially at risk because they are not investigating the way we expect them to,” Butler sad. “It’s extremely scary because we saw this happen before and we know that these numbers could creep up.”

The benchmark was brought about by a backlog that reached more than 16,000 cases from 2013 to 2015, which were not cleared for two years. In 2017, the backlog finally fell below 1,000 with the help of outside contractors and even bringing caseworkers out of retirement to assist employees.

The Legislature also set benchmarks on the number of its workers, the number of children in out-of-home care, and the number of open reports. All the benchmarks are exceeded except for the staff numbers. The staff is 164 below the benchmark and 343 of the employees are still in training.

Department Director Mike Faust attributed understaffing to a nationwide shortage of workers. He also emphasized the difficulty of casework and a high volume of incoming reports of abuse and neglect. The department previously requested and received money from the Legislature to pay their employees more, but the compensation has not been enough to retain those caseworkers.

Faust said of increasing reports of abuse and neglect that the department expects to see another spike in cases next month as children return to school after the holidays and mandatory reporters – those who are required by law to report such cases, including police officers and teachers – begin to see them. He also said the reports are especially “egregious” with a high number of murders and suicides.

Open reports are about 3,000 cases over the benchmark and the number of children in out-of-home care is about 861 cases above the benchmark.

Faust anticipates shuffling resources into Maricopa City, Pinal County, and the West Valley.

“Where you see huge amount of tract homes going up invariably, you’re going to have needs that arise.”

Former Republican legislator Kate Brophy McGee pointed to a shortage of foster parents and caseworkers, and to the steady stream of people moving to Maricopa County as issues outside of the department’s control.

“You talk to any employer across the country and they can’t find people to do these jobs, and in this case, you’ve got an influx of reports that far exceeds capacity.”

In 2014, former Gov. Jan Brewer and the Legislature restructured the child safety system by moving the agency formerly known as Child Protective Services from the Department of Economic Security to directly reporting to the Governor’s Office. The agency then became Department of Child Safety and the Legislature infused it with funds to hire caseworkers and chip away at the backlog.

Brophy McGee sponsored legislation that formed DCS and said she has confidence in Faust and the transparency of DCS.

Faust said that Covid has affected abuse and neglect reporting negatively.

“Mandated reporters make up a large part of our reporting, so law enforcement is number one, educators are number two,” said Faust. “Now when kids come back in person you see those concerns are now manifesting and they may have gone longer without being addressed so, they’re needing us to intervene.”

The Joint Legislative Budget Committee gave the DCS report a unanimous favorable review of the statistics at their last meeting on December 14.

Chuck Fitzgerald: Living a Psalms verse and reading ‘Moby Dick’ out loud

Chuck Fitzgerald (Photo by Paulina Pineda/Arizona Capitol Times)

Chuck Fitzgerald, the House of Representatives’ sergeant at arms, lives by a Psalms verse hanging in his office: “Turn from evil and do good; seek peace and pursue it.”

Fitzgerald, who was tapped to take over the role of sergeant at arms in late November, replacing Bob Robles who died last September, said the verse isn’t just a reminder of how he tries to live his life. It’s also what he aims to bring to the workplace.

Prior to his work at the House, the Peoria resident served as executive director of Glendale-based nonprofit Vineyard Community Charities and was previously the director of the Governor’s Office of Faith and Community Partnerships from 2014-15. Prior to that, he was the director of the Department of Economic Security’s Office of Faith and Community for seven years.

How did you get your start in state government?

I was a sales executive for a number of years and then I decided that I was going to go save a nonprofit somewhere. I ran down that road for a couple of years and ended up being offered a job at DES. The job I was offered there – they weren’t sure how to talk about the job at the time. But looking back, it was: How does a state agency define their community? Up until the time I was there, their community was basically their contractors, the ones they contracted to do the work. If you’d go to the meetings in the community, all you’d see are contractors. But where’s the rest of the community? Where’s the faith community? Where’s the business community? The civic community? I helped them kind of figure that out. And what was interesting about it was that as I was doing that it was very apparent to me and to others that the largest part of the community that was missing in the conversation was the faith community. Things like foster care, the faith community cares a great deal about foster care. So how do we connect the faith community with, at that time, CPS? What’s that connection look like? I started gaining some traction in that and lo and behold Governor Brewer took notice. She asked me to lead her faith initiative called Arizona SERVES and I was her faith and community guy.

You took a break from the public sector to lead a nonprofit for two years. How was that transition?

Not many people have been in the public sector, private sector and then in the nonprofit sector in their careers, and now I’ve been in all three of them. And I think I’ve been successful in all three. They’re not all that different. You’d think “Wow, a nonprofit. That sounds like it would be way different than working for government.” Well it’s really not that much different. It’s still about serving people – how to implement change when change isn’t an easy thing for organizations to do. I’d only view it as a transition, working on a different program, if you will.

Do you feel like you’re back home at the Capitol in your new role at the House?

It does feel a little bit like coming back home. I never thought I would say that. First of all, I said I’d never work for government and now I have over eight years. And then I said I’d never work for a nonprofit and I did that, too. The thing about government that I really like is I like the idea of public service and being a public servant. I really believe that’s what I am, I’m a public servant. There’s something about that that’s just noble.

What exactly does a sergeant at arms do?

In the press release (announcing his appointment) it talked about cooperation and collaboration and that’s kind of who I am. That’s what this place is about. How do we collaborate and move the good needle up a little bit? As sergeant at arms, part of my role is to kind of speak that into existence.

You’ve worked with some of the lawmakers before, but now it’s a different relationship.

Some of those representatives I’ve worked on community issues with them, either in my work with the government before or in my Rotary life or in my church life. So I know some of them pretty well. But I think when you’re here, what I like to say is this is hallowed ground right here. And I’m gonna treat it that way. And that means people are going to get respected by me and the people that work for me get that too. Even if I know somebody very well, and I’ve known some of these people for almost 20 years, I’m not gonna call them by their first name. One of the things I joke about is that even if they were standing in my kitchen I probably wouldn’t call them by their first name.

Your passion is community service, but what are some of your hobbies?

I love the outdoors. I wrote a book on birding. It was only an e-book, but it was a beginner’s guide to birding. I think when I was a young boy I was fascinated by binoculars, and birds are the coolest thing with a pair of binoculars. I would even go to the zoo with binoculars because there you could see all the birds you wanted to see. That’s one of the things I said in my book is if you don’t know where to find the birds, start at the zoo and take your binoculars. That’s something almost no one knows about me.

One other thing that very few people know about me is that I’ve read the book “Moby Dick” – out loud. The entire book. I read it to my wife. It started out as I read the first paragraph and I go “Oh, you gotta hear this.” And so I read her the first paragraph and then I just kept going. Kind of like Forrest Gump, I just ran. A few pages a day for a month or so. How’s that for odd things?

Corrections director Charles Ryan announces retirement

In this July 24, 2014, file photo, Arizona Department of Correction Director Charles Ryan arrives to speak about the review of the execution of Joseph Rudolph Wood, in Phoenix. Arizona officials will no longer administer according to an announcement made Monday, Dec. 22, the two-drug combination used in the nearly two-hour execution of Joseph Rudolph Wood this year. (AP Photo/The Arizona Republic, Nick Oza, File) — In this July 24, 2014, file photo, Arizona Department of Correction Director Charles Ryan arrives to speak about the review of the execution of Joseph Rudolph Wood, in Phoenix. (AP Photo/The Arizona Republic, Nick Oza, File)

Charles Ryan, the embattled longtime director of the Arizona Department of Corrections, is retiring amid calls for his ouster.

Ryan’s imminent departure, effective September 13, will mark the end of a roughly four decade career with the corrections department, with the last 10 years spent as the head of the agency.

It’s a career that’s been marred by controversy, most recently over claims that the department was negligent in failing to address issues with locks on prison doors, as well as an ongoing legal battle over the quality of prison health care. Ryan himself was found in civil contempt of court and fined for failing to provide adequate health care for Arizona inmates.

Gov. Doug Ducey has stood by Ryan amid these reports and others, though the governor also launched an independent investigation into DOC operations following reports of unlockable doors at the Lewis Prison in Buckeye, Arizona. The results of that investigation have yet to be produced.

“Chuck Ryan is my guy to fix these issues. Of course we’re going to look at the findings of the investigation and the report, but I’m counting on Chuck to get these things fixed,” the governor said in June.

In a statement on Friday afternoon, Ducey praised Ryan for his years of service in the field of corrections, and made no mention of the recent scandals that have plagued the director’s tenure.

“Director Ryan has committed his life to serving in the corrections field for more than 40 years. His dedication to ensuring public safety and providing inmates a real second chance, has made him a nationally-recognized leader… I’m grateful to Director Ryan for his dedication and service,” the governor said.

Calls for Ryan’s firing span nearly the entirety of his recent tenure as director, dating back to the summer of 2009, when a mentally disabled prisoner collapsed and died after being placed in an unshaded cage in 107-degree heat.

The incident followed Ryan’s appointment as corrections director by former Gov. Jan Brewer in January 2009. Ryan had previously served as corrections director from November 2002 to June 2003.

Ryan thanked Ducey in his resignation letter for “entrusting this position to me,” noting that Ducey nominated Ryan for an award through the Association of State Correctional Administrators in 2018. Ryan also praised the nearly 9,000 employees at the Department of Corrections, writing that it was his “honor and privilege to have served with these public safety professionals.”

“Though there is more to be done, now is the time for me to pursue new opportunities and rededicate myself to my family,” Ryan wrote.

Court expansion key to artists’ win in discrimination case

Brush and Nib Studio owners from left are Breanna Koski and Joanna Duka (Facebook)

A landmark Arizona Supreme Court decision on September 16 would have been different had the court not expanded from five to seven justices in 2016.

Gov. Doug Ducey on several occasions has been accused of “packing” the state’s highest court with conservative justices. It was a criticism in 2016 when he signed the court expansion bill into law and this year when he appointed Justices James Beene and Bill Montgomery.

Ducey has now made five appointments, more than any other governor in Arizona history, and has shaped the court for possibly decades.

His choices for justices on the court and the expansion certainly affected the outcome of Brush & Nib v. City of Phoenix, a case in which a split court said the First Amendment rights of two business owners outweighed a city anti-discrimination ordinance.

Ducey appointed Justices Andrew Gould and John Lopez to fill the newly created sixth and seventh seats at the end of 2016, and both of them voted in the majority, joining fellow Ducey-appointee Clint Bolick, who was appointed in 2016 before the expansion, and Gov. Jan Brewer-appointee John Pelander, who retired March 1.

Because oral arguments in Brush & Nib took place in January, Chief Justice Scott Bales, who retired in July, and Pelander still weighed in on the case.

Bales, an appointee of Gov. Janet Napolitano, voted in favor of Phoenix along with Vice Chief Justice Ann Scott Timmer, an appointee of Brewer.

Current-Chief Justice Robert Brutinel, a Brewer appointee, recused himself, but his stand-in, appellate judge Christopher Staring, sided with Bales and Timmer. Staring, who Ducey appointed to the Arizona Court of Appeals in 2015, would have been the deciding vote, had the court stayed at five members.

Thus, had Ducey and the Republican-controlled Legislature not expanded the court, the city of Phoenix would have won the case, 3-2.

The anti-discrimination ordinance was challenged by Brush & Nib owners Breanna Koski and Joanna Duka, who do not want to prepare their custom wedding invitations and other products for same-sex nuptials.

Duka and Koski are devout Christians who believe their work is inextricably related to their religious beliefs. They have said they strongly believe a marriage is meant to be between a man and a woman, and argue they cannot separate their beliefs from their work.

But in the carefully worded decision, the justices refused to give blanket protection to all businesses – including Brush & Nib – to simply turn away customers because of their sexual orientation. Gould, writing for the majority, said it leaves open the question of whether the two women could be forced to produce other products, like place cards for receptions, which do not specifically celebrate the marriage.

And it leaves in legal limbo the ability of Phoenix and other cities to enforce their ordinances that make it illegal to discriminate based on sexual orientation.

House Minority Leader Charlene Fernandez, D-Yuma, and Senate Minority Leader David Bradley, D-Tucson, among other prominent Democrats, criticized the decision, saying it was the result of Ducey’s master plan to stack the court to ensure conservative outcomes.

“This was a narrowly crafted case that produced a narrow, limited and hopefully temporary setback for equal rights in front of Governor Ducey’s packed and politicized Supreme Court,” Fernandez said in a press release.

The court historically is unanimous in its decisions – even after the expansion – and it is especially rare for justices to land on a 4-3 split. The Brush & Nib case is one of the examples where the dissent opinion would have been the majority without Ducey’s two additional appointments.

But it’s not the only instance. A 2018 water case with a 4-3 decision also saw Lopez and Gould vote with the majority.

In fact, since the two of them joined the court, they have been on the bench for 72 cases together, and have voted together in 71 of those. The one case where they did not agree occurred in 2017, Louis Cespedes v. State, a child abuse case where Gould authored the majority opinion, and Lopez was in the dissent.

Court losses piling up for anti-abortion legislation, cost state millions

The state of Arizona has been ordered to pay roughly $2.2 million in legal fees in the past eight years to organizations that challenge restrictive abortion laws adopted by the Republican-controlled state Legislature.

Some of those court orders are more than a decade in the making, like a challenge to a 1999 law with sweeping regulations of abortion providers that was finally settled in 2010, to a more recent case dealing with questionable medical advice the state required physicians to give to patients seeking medication abortions, for which a U.S. District Court judge ruled in August the state must cough up more than $600,000 in attorneys’ fees.

Just this week, the state and Planned Parenthood of Arizona settled the case for a sum of $550,000 in attorney fees.

Those court ordered payments, the result of five cases the state has either lost, settled or been nullified by legislative repeal, don’t include the costs to the Attorney General’s Office, which spent more than 3,300 hours and an estimated $173,500 defending the state in four such cases, according to an analysis of expense records and time sheets provided by the attorney general.

All told, that’s roughly $2.32 million spent defending laws that legislators were warned may not pass muster in court.

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Tucson Women’s Clinic v. Eden
Arizona Coalition Against Domestic Violence v. Arizona Department of Revenue
Isaacson v. Horne

Lawmakers approved HB2706 in 1999, and the lawsuit stemming from it would span for more than a decade. Known as a TRAP bill, or “targeted regulation of abortion providers,” the Center for Reproductive Rights filed a complaint on behalf of several Arizona physicians. The law was ultimately enjoined by the 9th U.S. Circuit Court of Appeals in 2004. The state then negotiated with plaintiffs to reach a settlement that was ultimately finalized in April 2010. The Center for Arizona Policy notes on its bill tracker that the law was overturned in court. ATTORNEY FEES: $389,000

In 2011, lawmakers approved a bill sponsored by then-Rep. Debbie Lesko, R-Peoria, that sought to prevent Arizona donors from receiving tax credits if they make financial contributions to abortion providers. Challengers never objected to that part of the law. However, the Arizona Coalition Against Domestic Violence took issue with part of the law that banned even organizations that “promote” abortion or refer clients to abortion providers from being eligible for the state’s list of tax credit-eligible groups. The coalition, along with the American Civil Liberties Union of Arizona, blocked the law in court. Lesko sponsored a different bill in 2012 that omitted the problematic referral language. ATTORNEY FEES: $56,711.15

The Center for Reproductive Rights took the lead in this case challenging a 2012 law, sponsored by then-Rep. Kimberly Yee, R-Phoenix, which sought to place a 20-week ban on abortions on behalf of several Arizona physicians. The 20-week ban, one of several policies in Yee’s bill, was ultimately overturned in court. ATTORNEY FEES: $388,400.00 CIVIL DIVISION EXPENSES: $6,117.09 SOLICITOR GENERAL’S OFFICE EXPENSES: $6,125.82 HOURS / SALARY ESTIMATE: 65.8 / $2,282.20

That’s on Republican legislators, who either don’t accept that they can’t regulate abortion to the degree they seek, or worse, said Jodi Liggett, vice president of public affairs with Planned Parenthood of Arizona.

“The less charitable view is that they understand perfectly that these are unconstitutional bills, they’re being advised that, and candidly, it’s a form of harassment,” Liggett said. “To make us go down there, spend money on lobbyists trying to stop things and then spend money on attorneys trying to stop them in court. So I think there’s a bit of burnishing their cred with the Center for Arizona Policy, or just as ‘pro-life’ legislators.”

The Center for Arizona Policy is often blamed by anti-abortion foes as the impetus for legislation targeting abortion access in the state. The center has made a name for itself as a conservative, evangelical policy group in Arizona by supporting anti-abortion candidates in elections and pushing Republican lawmakers to sponsor and vote for measures to restrict access to abortions in the state.

Center for Arizona Policy’s website boasts of its many legislative achievements, while also hinting at the repercussions of their efforts – an asterisk next to bills the organization helped pass that were later struck down in court. When Arizona loses those legal battles, taxpayers foot the bill for causes championed by the Center for Arizona Policy and its influential president, Cathi Herrod.

Out of six lawsuits brought against the state over Center for Arizona Policy-backed bills since 2009, the state has successfully defended two laws: A 2009 law requiring minors to get notarized parental consent for an abortion, and a 2011 law banning abortions sought for race-based purposes.

Herrod said 2009 is the place to start. That’s when Democratic Gov. Janet Napolitano was replaced by Republican Gov. Jan Brewer, a conservative friendlier to Herrod’s cause and thus when Herrod began tracking policies her organization has helped shepherd through the Legislature.

Herrod said the number of policies still in effect today far outweigh the losses in court. Thirty-seven “pro-life” policies are still on the books, ranging from a 2011 policy requiring women to receive an ultrasound before an abortion; a 2012 law requiring schools to push childbirth and adoption as preferred alternatives to abortion; and a 2016 policy prohibiting the research, experimentation or trafficking of fetuses.

“You have to first look at what is in effect. And then you need to look at what the court cases were,” Herrod said. “And the question is, why does the abortion industry oppose women being given information about abortion pill reversal? Why does the abortion industry file lawsuits on some of these bills?”

Abortion providers like Planned Parenthood, and Democratic legislators who’ve argued and voted against Center for Arizona Policy-supported bills, say lawsuits are filed because the policies are unconstitutional and harmful. Planned Parenthood and other organizations challenging the Legislature have indeed won more cases than they’ve lost since 2009, leaving Liggett of Planned Parenthood to question Herrod’s motives, and the motives of lawmakers who vote in Herrod’s favor.

“Are we really trying to create good public policy? Is this really about – in particular, is this really about women’s health and safety?” Liggett said. “Or is this just about making it as hard as possible (to have an abortion), which is actually harmful to women’s health and safety?”

For example, a 2012 bill designed to block clinics that provide abortions from receiving federal funds through Medicaid was flagged by House staff as problematic. House Rules Attorney Tim Fleming told the House Rules Committee that the measure, sponsored by then-GOP Rep. Justin Olson, may conflict with aspects of federal law.

Fleming told legislators he found similar measures, approved by other states that were then being litigated.

“Each of the statutes in each of those states were at least preliminarily enjoined,” he said, meaning a judge thought there was a good chance challenges to those laws would succeed. Fleming added that those cases had not yet been decided at the time.

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Planned Parenthood v. Betlach
Planned Parenthood v. Humble
Planned Parenthood v. Brnovich

In 2012, Rep. Justin Olsen sought to block Planned Parenthood and other abortion providers from receiving federal funds through Medicaid. HB2800 specifically banned organizations that provide abortions from being considered “qualified providers” for purposes of providing Medicaid funds for family planning services. The law was overturned in court, as the court ruled federal law dictates Medicaid enrollees can seek services from any qualified provider and that Planned Parenthood certainly qualifies as such. ATTORNEY FEES: $295,500.00 CIVIL DIVISION EXPENSES: $455.00 SOLICITOR GENERAL’S OFFICE EXPENSES: $480.44 HOURS / SALARY ESTIMATE: 46.10 / $1,648.10

A flurry of legislative activity in 2016 settled this case, which was spurred by Yee’s HB2036 – the same bill with the overturned 20-week abortion ban. In this case, Planned Parenthood challenged a policy requiring doctors to administer medication abortions using only the steps approved on U.S. Food and Drug Administration labels. A federal lawsuit blocked the policy in the 9th Circuit, while a separate lawsuit was filed against the policy in state court. While the law was hung up in court, Yee sought a legislative fix in 2016 that was spoiled when the FDA updated the label for medication abortion pills. Legislators repealed the law entirely later that year, rendering the cases moot, but leaving the state on the hook for legal fees. ATTORNEY FEES: $467,099* CIVIL DIVISION EXPENSES: $4,937.50 HOURS / SALARY ESTIMATE: 2,493.20 / $88,150.40* *Combined total from cases in state and federal courts.

Despite pleas and warning from obstetricians and gynecologists, Republican lawmakers still passed SB1318 in 2015. The bill required doctors to tell their patients that there was a chance medication abortions could be reversed in between doses. Women’s health providers said there was no scientific evidence to support that claim. Still, the bill became law, though lawmakers ultimately repealed it in 2016 when faced with a likely court loss. That still left state taxpayers on the hook for attorney’s fees. ATTORNEY FEES: $550,000* CIVIL DIVISION EXPENSES: $36,278.70 SALARIES BY THE HOUR: $25,958.60 *The state settled for less than the $612,218.78 it was ordered to pay.

Nonetheless, HB2800 was approved and a lawsuit was filed by Planned Parenthood. The law was overturned. And a judge ordered $388,400 be paid in attorneys’ fees, with the cost split evenly between the state and Maricopa County.

Liggett said it’s incumbent on legislators, particularly Republicans who promote themselves as fiscally conservative, to consider those costs when there are warnings the bills legislators sponsor and debate will have trouble in court. If not, they’re letting the Center for Arizona Policy use the state as a means to litigate their anti-abortion cause.

“A Republican legislator a long time ago used to talk about OPM – other people’s money. So if you can do this all day long, year in and year out, and spend taxpayer money – let’s remember, we’re talking about litigation costs. There’s also just cost of running legislation. There’s leg council, there’s staff. It’s not free. And when you have bills that you know early on that are not viable, that seems to me to be irresponsible,” Liggett said.

Among Arizona Democrats, Center for Arizona Policy takes a lot of the blame for pushing these bills and essentially having the state pay the cost of litigating abortion issues. But Senate Minority Leader Katie Hobbs said the buck stops with legislators, not Herrod.

“Herrod has a lot of clout, and she has a way to get lawmakers to do what she wants. But nobody has to do what she tells them to do,” said Hobbs, D-Phoenix.

Herrod said the Center for Arizona Policy, just like any other lobbying group, is well within the norm by pushing policy it favors at the Legislature. Contrary to the warning of other lobbyists, and at times the Legislature’s own attorneys, Herrod said her organization doesn’t push legislation if they don’t think it’s constitutional and believe it will be upheld in court.

Herrod pointed to HB2036, sponsored by then Rep. Kimberly Yee in 2012, which included a ban on abortions after 20 weeks. That policy was overturned in the 9th U.S. Circuit Court of Appeals. But at the time Yee, a Phoenix Republican, sponsored the bill and the center helped guide it through the Legislature, Herrod said there were “maybe nine or 10 states” that had a 20-week ban on the books.

“So we approached this certainly with what we believe – what problems are being solved by a pro-life bill, what the needs are, what we believe will be upheld in court, and what we believe is constitutional,” she said.

In other instances, court battles are simply part of the legislative process, Herrod said. The parental consent law, passed in 2009, “took, I think, three different tries, if not four tries, to get the parental consent requirement in Arizona upheld and enforced in law,” she said.

As for the losses in court, Center for Arizona Policy’s wins make the cost of litigation worth it, Herrod said.

“We would say that our batting average is something like 37 to 4. And I’ll take that average any day,” she said.

Republican legislators who back Herrod’s bills often feel the same way. None of the sponsors of bills that led to legal losses for the state returned calls for comment. But Sen. Debbie Lesko, who as a representative sponsored the bill to block abortion providers from tax credit benefits in 2011, had her reason for pushing the bill cited in an order preliminarily blocking the law.

“I believe God has put me here for a reason,” Lesko, a Peoria Republican, had said during a committee hearing. “And I often ask Him, ‘What is that reason?’ and I ask for a purpose. (I ask Him to) ‘Please guide me and tell me what you want me to do.’ And I truly believe that one of the purposes that I have been put in this position is to protect the lives of innocent children.”

Court rules unmarried heterosexual couple not entitled to state benefits

Heterosexual couples that always have had the right to marry in Arizona are not entitled to the same benefits that the state provided to gay couples who were not at the time entitled to wed, the state Court of Appeals ruled Tuesday.

The judges rejected claims by Renee Loncar, who worked for the state, that she should be entitled to death benefits following the death of her live-in partner Christopher Kutcher.

Judge James Beene, writing for the unanimous panel, acknowledged that Loncar would have been paid the death benefit had her partner been a woman. That is because a 2010 federal court ruling forbid the state from denying benefits to same-sex domestic partners that it provided to its married employees.

But Beene said refusing to recognize Loncar as Kutcher’s domestic partner was not illegal discrimination.

Attorney David Abney who represents Loncar said the judges missed the key point by confusing the issue with relationships and gender.

“If she had been a man, she would have gotten the benefits,” he said. Similarly, Abney said if Loncar had been living with a woman she would have been entitled to the death benefits.

“What the factor that’s at issue here?” he continued. “Sex. Nothing but sex.”

And that, Abney said, makes what the state was doing unconstitutional discrimination. He vowed to seek state Supreme Court review.

What the justices ultimately decide will have limited impact. That’s because gays have been allowed to wed legally in Arizona since the end of 2014.

But Abney said there is still an important principle to be determined: How far do constitutional provisions against sex discrimination extend.

Court records show Loncar was hired by the state in 2006.

Two years later, then-Gov. Janet Napolitano pushed through a change in personnel rules to provide benefits for “domestic partners” of state employees regardless of sexual orientation.

Loncar then listed Kutcher as her partner, signing him up for various benefits including life insurance.

Two years later, with Napolitano gone and Jan Brewer now governor, lawmakers voted to override the policy and limit benefits to married couples.

A federal judge blocked that law, saying it was illegal to deny benefits to gays who could not wed. He ordered the state to make coverage for gay state employees “to the same extent such benefits are made available to married state employees.”

That order, however, did not cover heterosexual employees who were not part of the lawsuit.

Kutcher died in a 2014 car accident but Loncar received no benefits. She sued in 2016 for Kutcher’s insurance, claiming illegal discrimination.

But Beene said the state did nothing wrong in offering benefits to same-sex couples as required by the court order but not to heterosexual couples.

“Loncar and Kutcher had the fundamental legal right to marry and could have obtained employee benefits, including insurance on Kutcher’s life, as a spouse under the laws of this state,” the judge wrote.

“Nothing in the state’s decision to offer benefits to same-sex couples impeded or prevented Loncar from doing so at any time,” Beene continued. “In contrast, short of litigation, same-sex couples had no option to legally marry to obtain employee benefits.”

Put simply, the judge said, the state complied with the 2010 federal order which was to make the same benefits available to gay employees as it did for its workers who could legally marry.

The appellate judges also brushed aside that the state effectively was forcing her into marriage to get benefits was “an assault on personal choice and individual freedom,” arguing that the U.S. Supreme Court decision allowing gays to wed also means that people have the “right not to marry.”

But Beene said that high court ruling dealt only with claims by same-sex couples that they were being denied the same rights and privileges as married couples.

“Loncar has always possessed that right — the personal choice and individual freedom to marry (or not marry),” the judge wrote.

Court sides with governor in dispute over bars closure

Parlor games like darts and pool are prohibited under social distancing rules during the pandemic. (Photo by Klara Kulikova/Creative Commons)

Gov. Doug Ducey’s order closing bars remains intact, at least for the time being.

In a 14-page order late Tuesday, Maricopa County Superior Court Judge Pamela Gates spurned a request by the owners of more than 100 bars and taverns to block enforcement of executive orders that forbid bars from opening while allowing operation of restaurants with liquor licenses to continue to serve clients. She said Ducey’s orders “are rationally related to expert data and guidance on minimizing the spread of COVID-19 in our community.”

Gates also said she saw no evidence that the orders cause irreparable harm to the bar owners, one of the factors that judges are required to consider when determining if a law or order can remain in effect while it is being challenged.

On paper, Tuesday’s order does not end the legal fight. Gates still has to decide whether a full-blown trial is needed or whether to dismiss most of the claim.

But attorney Ilan Wurman conceded the chances of ultimately convincing Gates that the governor’s actions are illegal remain slim. So he already is eyeing taking the case to the state Court of Appeals.

Tuesday’s ruling was not a complete loss for Wurman and his clients.

Gates, an appointee of Gov. Jan Brewer, said the decision by Ducey to allow restaurants to sell alcoholic beverages to go — something prohibited by state law — “impermissibly stretches” the governor’s emergency powers. That paves the way for Gates to declare such “off-premises” sales illegal.

At the heart of the fight have been decisions made by Ducey going back to March about which kinds of businesses had to close in a bid to slow the spread of the coronavirus. That initially included all bars and restaurants, along with a host of other businesses.

Ducey relented in May, allowing both to operate under certain guidelines. But after a spike in the number of COVID-19 cases he partly reversed course.

Under the current version of his order, establishments licensed as bars cannot open. But establishments licensed under state liquor laws as restaurants — meaning they derive at least 40 percent of their revenue from food — are allowed to operate.

The governor said bars can open if they apply to the state Department of Health Services and detail how they will change their operations.

State health officials have described that in generic terms to operate like a restaurant. That means leading patrons to their seats, having to wear a mask except while eating and drinking, and having to remain at the table.

That means no mingling or informal meet-and-greet. And dancing, darts and pool are definitely out.

Gates first rejected Wurman’s arguments that the legislature acted unconstitutionally in giving broad powers to any governor who declares an emergency. She said those laws entitle Ducey to do only those things “consistent with existing law and the Arizona Constitution.”

The judge also rejected claims that it was discriminatory to shut down bars but allow restaurants to not just remain open but continue serving alcohol.

She pointed out that Ducey has relied on recommendations from the federal Centers for Disease Control and Prevention as well as the White House Coronavirus Task Force, both of which have said there are reasons to distinguish between traditional bars whose primary business is the sale of alcoholic beverages.

Gates cited statements submitted by Dr. Marjorie Bessel, chief clinical officer at Banner Health, who said bars “pose a uniquely dangerous environment for the spread of COVID-19.” Those factors, Bessel said, include the fact that bars typically feature loud environment “which result in raised voices and greater projection of orally emitted viral droplets and cause people to lean in to each other when speaking, posing a greater threat of transmission.”

Then there’s the dancing which Bessel said, couple with limited ventilation, results in an environment where respiratory droplets are more easily spread.

And finally it’s a question of age.

“Bars tend to attract a younger adult population, which currently represents the highest demographic carrying COVID-19 in Arizona,” Bessel said.

Gates said she was convinced, saying that bar patrons “often linger for hours, mixing with different individuals and groups.”

“The consumption of alcohol, even when not to the point of intoxication, can dull one’s sense of caution,” the judge wrote. “In addition, mask wearing is incompatible with sipping and sharing drinks.”

And Gates said there’s another key difference.

At a restaurant, she said, a server routinely comes to the table to tend to patrons.

“Bargoers often mingle throughout the bar and seek out a new drink from the bar top or a server spotted across the establishment,” the judge wrote.

Gates noted that the restrictions on bars is based on weekly reports of virus outbreak in each specific county. And the judge noted that the risk of spread has already has diminished to the point where bars can reopen in Greenlee and La Paz counties based on health conditions there.

Crowd’s treatment of Ugenti-Rita heightens Senate discord

Sen. Michelle Ugenti-Rita, R-Scottsdale, angrily speaks during the vote of her bill to trim the Permanent Early Voting List while Sen. Kelly Townsend, R-Mesa, who voted against the measure, killing it, listens. SCREEN CAPTURE ARIZONA LEGISLATURE — Sen. Michelle Ugenti-Rita, R-Scottsdale, angrily speaks April 22, 2021, during the vote of her bill to trim the Permanent Early Voting List while Sen. Kelly Townsend, R-Mesa, who voted against the measure, killing it, listens. SCREEN CAPTURE ARIZONA LEGISLATURE

The unfriendly crowd Sen. Michelle Ugenti-Rita encountered at a Trump rally July 24 may prove problematic for her secretary of state run, but what happened after may complicate the 2022 legislative session.

After leaving the stage, Ugenti-Rita ran into a teenage provocateur working for a right-wing website whose approach of journalism consists of yelling at elected officials and bureaucrats he dislikes. She answered his first question – she blocked some of Sen. Kelly Townsend’s election bills because they were “bad” — and tried to walk away as the man yelled more questions after her.

Ugenti-Rita eventually told event security the man was harassing her, at which point they asked him to leave. Townsend encouraged him to return.

“This shows (Townsend’s) erratic emotional behavior & sick personal vendetta against me and others masked as caring about election integrity,” Ugenti-Rita tweeted. “If she isn’t stopped someone is going to get hurt.”

Her message continued as a direct appeal to Senate President Karen Fann: “This is the 2nd Senate member (Townsend) has encouraged violence against and you continue to ignore the situation. You must deal with her behavior immediately for the safety of the public, staff and members.”

Simmering tensions between Townsend and Ugenti-Rita have already killed multiple bills supported by the remainder of their caucuses. Townsend insists it won’t happen next year – but she also wants Ugenti-Rita to resign.

“I don’t care how well she’s done with election issues, or for how long she’s done it or how well she’s done it,” Townsend said. “If she is abusive in her position of power, then she needs to resign. We’ll find somebody that respects the community enough to not do that to them.”

Conflict within the caucus isn’t limited to the pair of senators. Senate Republicans can’t afford to lose a single vote on any legislation that Democrats won’t support, and leaders have continued to alienate Sen. Paul Boyer, the Glendale Republican most likely to balk on some issues – particularly the Senate’s ongoing audit of 2020 election results.

This week alone, Senate President Karen Fann, R-Prescott, went on a conservative talk show to complain that Boyer went “over to the dark side” and someone moved Boyer’s desk on the Senate floor to the Democratic side of the aisle. The desk-mover could be Senate Majority Whip Sonny Borrelli, who’s in charge of seating charts, but he didn’t return inquiries from Boyer or the Arizona Capitol Times. Fann and Ugenti-Rita also did not return phone calls.

Longtime lobbyist Chuck Coughlin speculated that problems in the Senate Republican caucus may result in Fann’s ouster, or even a power-sharing agreement with Senate Democrats.

“It’s the cannibalization of their own caucus,” he said. “I’m not clear that with these types of divisions going on and a one-seat majority that the leadership arrangement will persist.”

The Senate stands in sharp contrast to the House, where Speaker Rusty Bowers has held a 31-member Republican caucus with a one-vote majority in check for the past three years. Bowers has had disputes in his own caucus, including threats to replace him as speaker and a failed recall attempt supported by some House Republicans, but the House’s conflicts have never boiled over in the same way.

Coughlin attributes much of that success to Bowers’ even-keeled temperament. Like Coughlin’s former boss, Gov. Jan Brewer, and former President Ronald Reagan, the speaker seems to follow a rule of not publicly criticizing members of their own party.

“Speaker Bowers has been around much longer, and his discipline with regard to internal disputes won’t allow those things to come out,” Coughlin said. “He’s a very grace-filled man. He’s a human punching bag, but he never reacts to that. And, (House Majority Leader Ben) Toma is same way.”

Fann has been publicly critical of some of the senators in her caucus since shortly after she became president. During an end-of-session interview with the Arizona Capitol Times in 2019, Fann complained about a lack of “team spirit” from a group of new Republican senators who refused to vote for the budget plan she presented to them unless and until it included their priorities.

“It’s very hurtful to think that you work very closely with people only to find out that their personal wishes are more important than that of the entire group,” she said.

Prior to that, Ugenti-Rita said she asked Fann to let her preside over debate on some bills in committee of the whole, only to have Fann tell her that was a privilege reserved for “team players.”

“I asked [Fann] specifically, and I was told that I’m not a team player and that I’m a smart girl and can figure it out,” Ugenti-Rita said in June 2019.

Most of Fann’s comments have centered around Boyer, who began disappointing her before his first term in the Senate even began. He was one of several Republicans who voted for former House Speaker J.D. Mesnard, R-Chandler, for Senate president, and in 2019 his crusade to secure expanded legal rights for survivors of childhood sex abuse delayed the state’s budget and led to a standdown where Boyer ultimately prevailed.

In 2020, he joined two moderate Republicans who have since left the Senate in pushing for the Legislature to shut down during the height of the Covid pandemic. This year, he blocked Fann from arresting Maricopa County’s supervisors for contempt when they sought a court order affirming the Senate’s audit subpoenas and has become one of the most vocal Republican critics of the audit.

Boyer said he won’t let conflicts within the Senate or pressure from outside change how he votes on legislation. If it’s a good policy, no matter who the sponsor is, he’ll vote for it, he said.

“I’m not going to make my decision based on how I’m being treated,” he said. “I always looked at the argument. It doesn’t mean we’re going to go out for drinks after, but I don’t really do that anyways, so it’s not like I’m missing anything.”

Ducey abandons suit to stop deferred action recipients from getting driver’s licenses

After fighting the issue in court for years, Gov. Doug Ducey has finally agreed to issue driver’s licenses to all deferred action recipients.

In an announcement Wednesday, the state Department of Transportation said anyone who has an Employment Authorization Card issued by the Department of Homeland Security is entitled to a state license to operate a motor vehicle. The change is immediate.

The action comes as Ducey gave up trying to appeal a 2018 ruling by U.S. District Court Judge David Campbell that the state was required to issue licenses to everyone the federal government has allowed to remain this country.

It also comes years after the U.S. Supreme Court slapped down the state’s ill-fated bid to keep “dreamers” from being licensed. But Ducey insisted that the state was not obligated to issue licenses to other deferred-action recipients, like victims of domestic violence.

Gubernatorial press aide Patrick Ptak declined to comment, saying decisions on the lawsuit were being made by the state Department of Transportation. But Ducey had previously told Capitol Media Services that he wanted to pursue the litigation, even after a federal judge ruled against him.

That decision will cost taxpayers.

ADOT reports the state’s legal expenses to date of nearly $370,000. And that doesn’t count what the state may owe the National Immigration Law Center which filed suit.

The case is a spinoff of the original lawsuit filed against the state after then-Gov. Jan Brewer directed ADOT not to issue licenses to those who were part of the Deferred Action for Childhood Arrivals program enacted by the Obama administration.

Brewer argued that DACA is merely an administrative decision not to deport the dreamers. And she said DACA recipients do not meet the requirements of a 1996 state law that says licenses are available only to those whose presence in the country is “authorized by federal law.”

A federal appeals court quashed the policy, saying only the federal government can decide who is in this country legally.

One claim in that lawsuit was the state was not being fair, as it had been providing licenses for years to those in other deferred-action programs. So in its bid to justify denying licenses to dreamers, the state stopped issuing licenses to those in these other groups.

The appellate ruling ordering the state to license dreamers did not help these other deferred action recipients as they were not plaintiffs in the original lawsuit, resulting in this 2016 lawsuit.

In his ruling last year, U.S. District Court Judge David Campbell slapped the state for what he said was playing litigation games, changing its policies in an attempt at first to justify denying licenses to dreamers and, when that didn’t work, to deny licenses to other deferred-action recipients. In both cases, he said, the state was trying to decide, illegally, that it could determine who is in this country legally.

Campbell also rejected claims by Douglas Northup, the private attorney Ducey hired at state expense, that those other deferred-action recipients actually could get a license − if they produced certain other evidence.

“Indeed, when asked during oral argument where a person could go to learn of this policy and how to comply with it, defense counsel was unaware of any place where it had been publicized,” the judge wrote.

Ducey asks Supreme Court to overturn Roe v. Wade

Gov. Doug Ducey wants the U.S. Supreme Court to overturn it’s historic decision in Roe v. Wade and leave the question of whether to allow abortion in Arizona to state lawmakers — and to him as an unapologetic foe of the practice.

Ducey is among 12 governors who filed a brief Thursday with the nation’s high court in support of a Mississippi law that bans terminating a pregnancy after the 15th week. Enforcement of that law has been blocked by the 5th Circuit Court of Appeals.

But the brief goes beyond arguments by Mississippi that the law is a permissible regulation of abortion as it does not ban the practice outright.

Instead, Ducey and his fellow governors want the justices to revisit the original 1973 decision and subsequent rulings that say the government has no authority to decide a woman’s decision about whether to keep or terminate a fetus before viability. That, in turn, would leave the issue to the legislatures and governors in each of the states.

Potentially more significant, it might not even require a public debate or vote in Arizona on the question of the rights of a woman to an abortion.

That’s because legislators never repealed many of the laws that predate Roe v. Wade, meaning they remain on the books, albeit are currently unenforceable. That leaves the question of whether they would automatically take effect again if Roe is overturned.

Gov. Doug Ducey( AP Photo/Ross D. Franklin, Pool, File)

If nothing else, it would again make the question of abortion rights front and center in future statewide and legislative political races, something that until now hasn’t been necessary given the Supreme Court ruling.

But that, according to the governors, is exactly what they want.

“The Constitution preserves the rights of the states by specifically enumerating the authority granted to the federal government,” Ducey said in a prepared statement explaining his decision to seek to overturn Roe. “Unfortunately, almost 50 years ago, the U.S. Supreme Court decided to ignore the Constitution and created policy which has led to the over-politicization of this issue for decades.”

And the governor made it clear where his sentiments lie if Arizona gets to decide whether abortion remains legal here.

“Every single life has immeasurable value,” he said.

“That includes children who are preborn,” Ducey continued. “And I believe it’s each state’s responsibility to protect them.”

But Rep. Athena Salman, D-Tempe, called Ducey’s legal efforts “patronizing, sexist and extreme.”

“Here we have yet another man who will never become pregnant, who will never be faced with a choice of whether or not they need to get an abortion, abusing the position of his elected office to deny this fundamental piece of health care to the millions upon millions of people who will need it at some point in their lives,” she said, citing figures that one in four women will terminate a pregnancy. And Salman said this is a fundamental — and national — constitutional right, not something that should be decided on a state-by-state basis.

“It is fundamentally wrong for your zip code to determine whether or not you can have access to a safe, regulated form of health care and abortion,” she said.

Whitney Walker, a vice president of Planned Parenthood Arizona, questioned Ducey’s desire to get involved in the issue.

In this April 23, 2021, file photo, members of the Supreme Court pose for a group photo at the Supreme Court in Washington. Seated from left are Associate Justice Samuel Alito, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Stephen Breyer and Associate Justice Sonia Sotomayor, Standing from left are Associate Justice Brett Kavanaugh, Associate Justice Elena Kagan, Associate Justice Neil Gorsuch and Associate Justice Amy Coney Barrett. (Erin Schaff/The New York Times via AP, Pool)

“Instead of focusing on the rising COVID-19 case numbers or educating the public to get vaccinated, Gov. Ducey is concerned with denying access to essential health care to the state’s residents, all in the middle of a global pandemic,” she said in a prepared statement. “Ducey needs to stop playing politics and start doing what is right for Arizona.”

In blocking the Mississippi law, the 5th Circuit said Roe held that the right to privacy “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.

The judges said that was reaffirmed in a 1992 case, saying “the state’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure.”

Ducey and the other governors want the current crop of Supreme Court justices to conclude that these decisions were an illegal infringement on state sovereignty. That, they said, would let the states “serve as laboratories of democracy for establishing and implementing suitable abortion regulations based on the latest scientific knowledge.”

But Ducey, in his six years as governor, has never said he wants some sort of examination of when abortions should be legal.

Planned Parenthood is a non-profit organization that provides reproductive health services. (Deposit Photo)

Instead, citing his pro-life stance, he has signed every bill restricting abortion that has reached his desk. And a panel of appointees hand-picked by the governor even went so far as blocking state employees from making payroll deductions to Planned Parenthood yet allowing donations to Alliance Defending Freedom, an openly anti-abortion public interest law firm that has gone to court to defend legislation to restrict abortion rights.

In their legal brief, the governors said the question of whether to allow or outlaw abortion is one for the states to decide.

“Once voters cast their ballots, it is up to a state legislature to decide how the state will regulation abortion,” Ducey and his colleagues told the court.

“And if voters do not like what a legislature does, then they have democracy’s ultimate check: the ballot box,” they continued. “There is nothing wrong with giving this issue back to the people.”

What that also would do is shift the debate stage.

“No longer would the issue dominate presidential campaigns,” the governors said. Instead, the focus would shift to the state level which they said “better allows those differing voices to be heard and to shape policy.”

For the most part, though, the makeup of the Arizona Legislature has tilted toward adopting more and more restrictions in a bid to get around — if not directly challenge — Roe v. Wade.

For example, a 2012 law, signed by Ducey predecessor Jan Brewer, sought to ban abortions at 20 weeks. A federal appeals court struck it down as conflicting with Roe and the constitutional right of women to terminate a fetus that is not yet viable outside the womb.

Just this year, the legislature approved and Ducey signed a measure to make it a crime to abort a child because of a fetal genetic defect despite claims by foes that interferes with the rights of women to make decisions before the point of viability. That same law also:

– Allows the husband of a woman who seeks such an abortion, or the woman’s parents if she is younger than 18, to sue on behalf of the unborn child.

– Outlaws the ability of women to get otherwise-legal drugs to perform a medical abortion through the mail or other delivery services.

– Declares that the laws of Arizona must be interpreted to give an unborn child the same rights, privileges and immunities available to anyone else.

That law takes effect at the end of September. Planned Parenthood said no decision has been made whether to challenge it in court as violating the rights set forth in Roe and the subsequent court rulings.

Ducey delays waterpark reopening with move to federal court

The attorney for a Mesa water park is accusing the governor of “playing games” in a bid to delay a ruling on whether it is the victim of illegal discrimination.

The accusation by Joel Sannes comes after Brett Johnson, the private attorney hired by Gov. Doug Ducey, had the lawsuit transferred to federal court. That comes just days before Maricopa County Superior Court Judge Janice Crawford had scheduled a hearing to hear the issue.

Sannes did not dispute the maneuver is legal.

The lawsuit on behalf of Mesa Golfland Sunsplash charges that Ducey is violating various state constitutional provisions in keeping the park closed while allowing virtually identical operations at resorts to be open. Those cases are normally tried in state court.

But Sannes also is alleging the governor has run afoul of a provision of the U.S. Constitution which requires equal protection under the law and due process. Johnson is using that as the reason to have it transferred to federal, though there is no legal prohibition against state judges deciding such issues.

“It’s another example of the state playing games with people who are being damaged by closures,” Sannes told Capitol Media Services.

“There was no need to remove to federal court except to try to delay Sunsplash’s (request for a) temporary restraining order,” he said, an order that asks “nothing more than it be able to do business in the same way hotel, resort and public water parks do.”

By moving the case to federal court, the process starts over again, with the governor now given until next week to respond.

Gubernatorial press aide Patrick Ptak downplayed the maneuver.

“Removal to federal court is standard procedure especially when federal claims are involved,” he said. “It’s simply procedural.”

But if Ducey was counting on a major delay, he may be disappointed.

U.S. District Court Judge John Tuchi, to whom the case was assigned, is not going to let it sit too long. He has scheduled a hearing on the issue for Aug. 28.

The maneuver by the Republican governor comes with another risk.

Crawford was a 2011 appointee of Republican Gov. Jan Brewer. By contrast, Tuchi was named to the federal bench in 2013 by President Barack Obama.

And whatever the outcome it would likely set a precedent that would affect all other freestanding water parks in the state.

Water parks and pools of all sorts were closed by the governor as part of his emergency orders to deal with the coronavirus.

They were allowed to reopen in May if they followed certain guidelines. But that lasted only until late June when, faced with a spike of new COVID-19 cases, the governor reversed course, closing many businesses again, including places like Sunsplash.

But here’s the thing: The order did not apply to “pools operated as part of a public accommodation, such as those at hotels,” though they were required to enforce certain rules like keeping groups larger than 10 from congregating in or near the pool.”

The initial argument was that resorts could better manage the crowds at their own pools as they were limited to those guests staying there. But that’s not true.

For example, the Arizona Grand Resort at the edge of Tempe and Phoenix is offering day passes for $65. That includes not just the pool but waterslides and a “windy lazy river” to float on.

Westin Kierland Resort & Spa has day passes starting at $35 for its amenities including its “adventure water park.” And there are $29 day passes at the Fairmont Scottsdale Princess.

“It looks to us like the governor’s picked winners and losers,” Sannes said. But, fairness aside, he contends the disparity also is illegal.

It starts, he said, with the decision to shutter Sunsplash without the Department of Health Services providing an opportunity to give it a chance to prove “operation of its facilities is not a threat to public health.” Sannes also said there is no “rational basis” to close Sunsplash — and other freestanding water parks — that observe the recommended protocols to prevent transmission of COVID-19.

And then there’s the discriminatory aspect of what Ducey has ordered, arguing that his orders “create an arbitrary classification between ‘water parks’ such as plaintiff’s facility, which is subject to closure, and other hotel and resort ‘pools’ that are as much a ‘water park’ as plaintiff’s facilities, but which are not subject to closure.”

Ducey flexes veto power to bring uncooperative Republicans in line on budget

In this Dec. 2, 2020, file photo, Arizona Republican Gov. Doug Ducey answers a question during a news conference in Phoenix. A new voter-approved tax on high-earning Arizonans that will boost education spending is firmly in Gov. Doug Ducey's crosshairs, with the Republican vowing Friday, March 19, 2021, to see Proposition 208's new tax cancelled either through the courts or the GOP-controlled Legislature. (AP Photo/Ross D. Franklin, Pool, File) — In this Dec. 2, 2020, file photo, Arizona Republican Gov. Doug Ducey answers a question during a news conference in Phoenix. (AP Photo/Ross D. Franklin, Pool, File)

Gov. Doug Ducey is putting a moratorium on all bills for the remainder of the legislative session until lawmakers send a budget to his desk.

In a Friday afternoon announcement, Ducey vetoed all 22 pieces of legislation sitting on his desk, which range in topics from critical race theory to homelessness and said it wasn’t because they were bad policy.

“Some are good policy, but with one month left until the end of the fiscal year, we need to focus first on passing a budget. That should be priority one. The other stuff can wait,” the governor said in a written statement.

Lawmakers failed to pass a budget this week after introducing 11 budget bills in each chamber on May 24, and after not being able to negotiate to receive the minimum of 16 and 31 votes in the House and Senate, respectively, legislators opted to take two weeks off to come back on June 10 unless they have a reason to come back earlier.

This could be that reason.

CJ Karamargin, Ducey’s spokesman, said the governor’s veto was meant to spur lawmakers back to work, though he wasn’t sure it would work.

“The governor has made clear what he’d like them to do – get back to work,” he said.

He said, “courtesy calls were made” to tell lawmakers about the incoming vetoes after Ducey made the decision Thursday within a few hours of lawmakers adjourning until June 10.

This isn’t the first time Ducey has had to come in with an ultimatum for the legislative branch. In 2018. He vetoed 10 Republican-sponsored bills in a move to force the hands of lawmakers to send him a budget reflecting an agreement with educators over the 20×2020 plan.

Ducey’s predecessor, Jan Brewer, also used the same tactic. In 2013, she announced, also in May, she would not sign any measures until there was resolution of a new state budget. And in that case, the then-governor also wanted it to include her plan to expand Medicaid.

Lawmakers were not happy then, with Andy Biggs, then the Senate president, calling it “extortion or blackmail.”

“Once the budget passes, I’m willing to consider some of these other issues. But until then, I will not be signing any additional bills. Let’s focus on our jobs, get to work and pass the budget,” Ducey said Friday.

But it’s not that simple that he can just undo a veto. The lawmakers have three options now: they can let these bills die and bring them back in a future session, they can override the veto with two-thirds support in both chambers (which hasn’t happened under Ducey’s tenure), or they would have to re-introduce the bills – likely as striker amendments – and vote on them again.

“Everyone thinks they’re the 31st vote and everyone thinks they’re the 16th vote, but at the end of the day, (Ducey’s) the last vote,” said Rep. Regina Cobb, R-Kingdom, the chairwoman of the House Appropriations Committee.

One of Cobb’s bills was among the ones Ducey vetoed. She was in the Legislature in 2018 when he placed a similar moratorium on sending bills to his desk.

“That just means he’s losing patience,” she said.

Cobb didn’t know yet what this will mean for budget negotiations or whether it will get some of the holdouts on board with passing it.

“I don’t know where we’re going to end up at the end of the day, but a lot of members are taking vacations and thinking their personal time is more valuable, and that’s everybody’s personal feelings and they have to make the decision sometimes on whether or not being a legislator and being here at the Capitol is more important than getting that done,” Cobb said. “Our only job we have to do, that one job to do is passing that budget, and if we can’t get that done, we’re not doing our job.”

House Minority Leader Reginald Bolding, D-Laveen, said he wasn’t sure if Ducey’s vetoes would result in a budget that was more palatable to the Democrats.

“These (Republican) members are looking to push even more extreme policies than (are in) the current budget,” he said. “Democrats have always been ready and willing to work, and that’s what we’ll keep doing,” he said.

Among the vetoed bills is one of the last surviving criminal justice measures, Sen. Tony Navarrete’s SB1526 to require the Arizona Department of Corrections to provide sufficient free menstrual products to female inmates, ensure incarcerated pregnant women are not restrained and increase opportunities for most prisoners to see their minor children. Navarrete did not immediately return a call about the apparent death of the bill, versions of which a bipartisan group of lawmakers have tried to pass for years.

A bill to bar government agencies from providing some kinds of diversity, equity and inclusion training, which passed the House and Senate to great acclaim from a conservative media sphere newly fascinated by “critical race theory,” also fell prey to Ducey’s veto. So did the annual list of technical amendments to legislation crafted by legislative staff — the grammatical fixes that usually pass near the end of the session.

And another bipartisan measure requiring the Arizona Department of Housing to add a new senior homeless shelter in the West Valley went down, though it could be tied to the budget. Rep. Randy Friese, D-Tucson, mourned the veto of several marijuana-related bills that Democrats and Republicans worked on together.

“To veto these needed policies in an effort to strong-arm through your regressive tax plan is irresponsible. Arizonans deserve better from their leaders,” Friese tweeted.

Ducey vetoed eight House bills. One, HB2792, would have required a voter to send a request before receiving an absentee ballot, effectively barring the establishment of an automatic vote by mail system like Washington and a few other states have. (The permanent early voting list, or the active early voting list as it is now called due to a controversial voting bill Ducey signed earlier this session, was exempted.) Another, HB2554, would have required political party challengers and representatives at polling places to be registered to vote in Arizona. Most of the other bills were uncontroversial and passed with large majorities, including two sponsored by Friese establishing regulations surrounding the legalization of marijuana in Arizona.

Rep. John Kavanagh, R-Fountain Hills, said Friday afternoon he had just heard about Ducey’s action and would have to look at the bills, although he said “at first glance there’s concern.” He said he thought lawmakers would “get back next week and continue plowing through. But we’ll see.”

Democrats quickly panned the decision as a “temper tantrum” by a governor upset his tax plan can’t pass the Legislature, though Sen. Martín Quezada, D-Glendale, quipped that he wasn’t bothered because most of the bills were “trash policy” anyway.

“There are 43 Democratic legislators who would have loved to have been included in the creation of a budget that truly supports all Arizonans, a budget that could have been passed by now,” Rep. Melody Hernandez, D-Tempe, tweeted in response to Ducey. “I think your constituents would have preferred that to veiled threats.”

Ducey’s 2018 veto message was much more to the point.

“Please, send me a budget that gives teachers a 20 percent raise by 2020 and restores additional assistance. Our teachers have earned this raise. It’s time to get it done,” he said at the time.

Republican leadership teams in the House and Senate could not be immediately reached, including Senate President Karen Fann who is supposedly on vacation in Hawaii.

Capitol Media Services contributed to this report.

Ducey proposal to ditch immunity for lawmakers met with chilly response

A call by Gov. Doug Ducey to repeal the so-called “legislative immunity”provision of the Arizona Constitution is getting a chilly reception from several senior lawmakers.

Legislators who spoke with Capitol Media Services said there’s a good reason there is a privilege from arrest, which dates from the first days of statehood. That’s part of the reason there has not been a concerted push to rescind it.

In fact, it only became an issue for the governor following the release of only the videotape of Rep. Paul Mosley, R-Lake Havasu City, explaining to a La Paz County deputy that it was OK for him to drive 97 miles an hour in a 55 mph zone and boasting of having driven up to 140 mph.

“I don’t break the law because I can,” he is seen telling the deputy.

Ducey directed Department of Public Safety officers under his control to consider criminal speeding — anything 20 miles over the limit — to be a “breach of the peace” which is not covered by the constitutional protection. And Ducey, unable to repeal the provision himself, said he wants lawmakers to put the question on the ballot for voters whose approval would be needed for the change.

But prior efforts to refer the issue to voters have gone nowhere.

Sen. John Kavanagh, R-Fountain Hills said the language was put there for a reason. And he’s not convinced those protections should go away.

“The whole thing in there was not allowing legislators to break the law and get away with it,” said Sen. Karen Fann, R-Prescott. “It was only put in there to make sure that legislators could do their job while they’re in session.”

And Sen. Sylvia Allen, R-Snowflake, said the problem isn’t the anti-arrest provision. “Some people are not interpreting it the way I believe the way the original constitutional founders had intended to put it in there.”

It’s not just legislative Republicans who are balking at what Ducey wants.

“I think there’s a good reason for that,” Rep. Lela Alston, D-Phoenix, said of the provision.

“There could be mischief,” she said, by those trying to keep lawmakers away from the Capitol. And Alston, first elected to the Legislature in 1976, has been around longer than anyone else currently there.

If there’s a common denominator among lawmakers, it seems to be that while the incident with Mosley has drawn attention to the century-old provision, they believe something more than a knee-jerk reaction from legislators and voters is needed.

The main outlier on the issue is Sen. Martin Quezada, D-Glendale, who has tried to put repeal on the ballot since 2013 without luck. Quezada said he’s not convinced that any lawmaker needs to be free from arrest while the Legislature is in session.

But even Quezada would not go as far as Ducey wants. He told Capitol Media Services he wants to preserve the part which says lawmakers should not have to appear in court in civil cases during the session, something gubernatorial press aide Daniel Scarpinato said his boss wants repealed.

Gov. Doug Ducey

“There’s some legitimacy to not having to subject lawmakers to being served until after the session is over,” he said.

The entire controversy is built around a mistake that lawmakers have actual immunity.

What the provision actually says is lawmakers cannot be arrested during the session or in the 15 days leading up to the session unless they are charged with treason, a felony or “breach of the peace.” Nothing keeps them from being arrested after the session is over.

The same provision also says lawmakers are not subject to “civil process” during the same period.

Ducey, who had never mentioned the constitutional provision since being elected in 2014, stepped in with an executive order last week in the wake of the Mosley video.

He directed DPS officers that they should not interpret that language to conclude that legislators cannot be ticketed for speeding. But Ducey also said he thinks it’s time for the entire provision to go, saying he will ask lawmakers when the session resumes in January — assuming he is still governor — to put the issue on the 2020 ballot.

Kavanagh, first elected in 2006, said that ignores the reason the framers of the Arizona Constitution included the provision in the first place.

“I’m told, because I wasn’t around when they passed this, this is because there were situations where sheriffs or police in some counties attempted to prevent legislators from going to the Capitol by arresting them so that they couldn’t vote,” he said.

Anyway, Kavanagh pointed out, “there is no immunity.”

“You still can be served when the session ends,” he said. “So I don’t think there’s a problem with that.”

Even assuming the privilege applies to traffic citations — a point of dispute — Kavanagh said nothing keeps a lawmaker from having to answer for his or her offenses.

“The officer notes the information,” he said. “Then, when the session’s over, they get (a) summons or they get arrested.”

Quezada, who sponsored the measure that Kavanagh would not consider, acknowledged that part of the problem is that some of his colleagues have tried to use the privilege for years in ways it was not intended.

“Every legislator is aware that we have some sort of immunity,” he said.

“But very few of us, at least in my experience, actually understand what it actually means and what kind of benefit it actually gives you,” Quezada said. “So they then abuse what they believe is their immunity.”

He said some of that could be resolved with better training of lawmakers about the limits of the provision. But Quezada said that’s not the answer.

“Why do we even need that arrest privilege in there at all?” he asked. And he dismissed the possibility that eliminating the provision could lead to the kind of mischief of detaining lawmakers that constitutional framers feared, saying that legislative hearings and votes are postponed all the time when someone is delayed for any reason at all.

The incident earlier this year with Mosley — along with six other times he escaped getting cited since taking office last year — is not the first time lawmakers have used what some see as a de facto get-out-of-jail card.

In a 2011 incident, Scott Bundgaard, then a Republican state senator from Glendale, was seen by police fighting physically with his girlfriend alongside a Phoenix freeway.

When police sought to arrest both, Bundgaard claimed legislative immunity from arrest. That allowed him to avoid jail while his companion was locked up for 14 hours.

The following year, Rep. Daniel Patterson, D-Tucson, used the same claim to try to avoid facing charges of domestic violence. He ended up resigning from the Legislature.

But the history goes back even farther.

Before she was governor, Jan Brewer, then a state lawmaker, escaped being charged with drunk driving in 1988 after the vehicle she was driving rear-ended a van on the freeway. While police reports say she failed the field sobriety test, she was not given a breath test after a DPS officer concluded she was entitled to immunity.

In 1995, then state Rep. Phil Hubbard, D-Tucson, argued he was entitled not to be ticketed for driving 14 miles per hour over the speed limit on Interstate 10 because he was enroute to a legislative hearing.

And eight years earlier, then Rep. Bill English, R-Sierra Vista, was arrested on a charge of drunken driving. English initially claimed immunity but eventually dropped that defense, was convicted, and paid a $373 fine.

Ducey says state law, not pope, dictates his action on death penalty

Gov. Doug Ducey said he will obey Arizona law and not Pope Francis, who has now declared that the death penalty is unacceptable in all cases.

But the governor noted that, at least for the moment, he doesn’t have to make that choice.

The issue arises because the pope, in the strongest statement ever, said earlier this month that executions are “an attack” on human dignity. Francis also promised to work “with determination” to abolish capital punishment wherever it still exists.

“I, of course, am going to listen to what the pope says,” Ducey said on Monday when asked about it. The governor is a practicing Catholic.

“At the same time, I took an oath to uphold the law in Arizona. And I’m going to continue to uphold the law,” he added.

Anyway, Ducey said, it’s not like this is something new.

“This has been the catechism for some time of the church,” he said, referring to the beliefs laid on in writing of the Catholic faithful. He said Francis was only “adding a qualifying comment.”

But that has not exactly been the case.

In his 1995 Evangelium vitae — the Gospel of Life — Pope John Paul II said that execution is only appropriate in cases of absolute necessity, “in other words when it would not be possible otherwise to defend society” through non-lethal means. That language provided enough of an escape clause of sorts for Catholic officials like the governor who must sign death warrants.

What Francis said earlier this month effectively closes any loophole, at least as far as Catholic doctrine.

The governor sidestepped questions of whether he is saying that state statutes, and his oath to obey them, are superior to God’s law, at least as interpreted by the pope.

“We can have an interesting discussion about that and about life,” Ducey responded. He pointed out that, at least for the time being, he doesn’t have to make that choice.

“Thankfully, there’s nothing on the docket in front of me at the time,” he said.

The last execution in Arizona was in 2014, under Gov. Jan Brewer. Since that time, a series of legal actions about the penalty and the drugs used to execute inmates have resulted in a virtual moratorium on executions.

There are currently 117 inmates on “death row,” including three women.

Ducey surpasses state record of judicial appointments

The Arizona Supreme Court from left are James Beene, Andrew Gould, Ann Scott-Timmer, Chief Justice Robert Brutinel, Clint Bolick, John Lopez, and Bill Montgomery. — The Arizona Supreme Court from left are James Beene, Andrew Gould, Vice Chief Justice Ann Scott-Timmer, Chief Justice Robert Brutinel, Clint Bolick, John Lopez, and Bill Montgomery. Gov. Doug Ducey has chosen all the justices except Timmer and Brutinel and he has made more judicial appointments than any Arizona governor in history

Gov. Doug Ducey has been in office for 1,942 days, and has made 71 judicial appointments over that span, but his picks will have a lasting impact on Arizona long after he leaves office.

On April 24, Ducey surpassed Gov. Bruce Babbitt for the most appointments in state history after naming three judges to the trial court in Maricopa County and one to the Court of Appeals Division One. Coincidentally, Babbitt was the last Arizona governor to successfully serve two full terms.

Ducey passed him with still more than two years left to go and plenty more picks to make.

His record-breaking choices extend to more than just the most overall, but it’s hard to imagine any future governor would appoint five or more Supreme Court justices during their term as governor, something he accomplished in 2019 after appointing both Justice James Beene and Justice Bill Montgomery.

Ducey is able to make judicial appointments through a process called merit selection. A commission – either for trial courts or on the appellate level – narrows down a field of applicants through an extensive vetting process to send a list of qualified candidates for an interview with the governor and subsequent appointment. It’s required to send at least three names (with party restrictions), but commissions will typically send five – and occasionally more.

ASU law professor Paul Bender said the longer the list of candidates Ducey has to choose from, the more likely the picks become political.

“The commission is there for a reason, and it’s to narrow down the people so the governor can appoint the best people,” Bender said. “When you start sending in five or seven names, that doesn’t work as well anymore.”

From Ducey’s recent pick of Cynthia Bailey to the Court of Appeals, he was given a list of 11 candidates. The commission in this instance barely winnowed down the field, only eliminating one candidate.

When Ducey appointed Montgomery in September, he interviewed seven people. For each of Gov. Jan Brewer’s three appointments to the highest court, she was given a list of just three names. Clearly, Ducey has received more freedom to make picks than previous governors.

“The more names you give him the more it’s like he can pick whoever he wants,” Bender said.

Ducey has also come under heavy scrutiny from mostly Democrats on his appointments to the nominating commission. Made up of 15 people with the chief justice serving as its chair, there is not a single Democrat involved. The commission is also in charge of vetting candidates for the Independent Redistricting Commission providing a double-whammy of sorts for Republicans to regain control of Arizona’s next political decade.

Bender referenced the governor’s picks to the Commission on Appellate Court Appoints as a further reason he is able to choose who he wants, within reason.

“The combination of the fact that he’s been able to put people on the commissions and the fact that the commissions are giving him a lot of names, has given him more freedom than previous governors have had since the merit selection system started,” Bender said.

Through his 71 total appointments, he has spread around diverse picks to shake up the courts. Ducey has appointed the most women, the most members who don’t belong to his own party and sits behind only two governors for the most racially diverse selections. But looking into where those picks have gone, he seems to favor diversity on the lower level courts.

Doug Ducey

Ducey appointed 25 total women to the courts, but not one serves on the Supreme Court, though he has interviewed several. He appointed four women to the Court of Appeals (compared to nine men), and the bulk of his female selections went to the Maricopa County Superior Court.

His appointments to the Supreme Court consist of five men, but four are Republican and the one who is not, Justice Clint Bolick, is an independent who is still viewed as highly conservative.

His Democratic and third-party picks typically go to the Superior Courts as well. He has appointed 29 people not belonging to the Republican Party – and only four (including Bolick) are on the appellate level.

Bender said this is important because appellate courts are the ones who are really making the laws.

“It is more important to have political balance on the appellate courts than it is on the trial courts, because the appellate courts make the law and the trial courts just decide the cases,” he said.

Ducey’s picks will also last a while because he has made a habit of appointing younger judges. The courts have a mandatory retirement age of 70 and at least on the Supreme Court, none of the justices will reach that mark until at least 2027. Bolick is the oldest being born in 1957, but Chief Justice Robert Brutinel (a Brewer-appointee) could keep up with tradition and retire after his five-year term as chief ends in 2024. So barring a resignation or death, or a lost retention vote, 2024 seems to be the earliest the next justice will be named to the high court.

One judge who interviewed with the governor for an appointment said Ducey doesn’t ask easy questions and was engaged in the answers.

Ducey expects some level of analytical explanation in the response, and he’s not looking for specific answers either, and he also asks about relevant beliefs like the role of a judge or justice, separation of powers, and specific constitutional provisions. He asks personal questions too, such as reading choices, greatest personal accomplishments and time spent outside of law.

The judge said Ducey doesn’t always conduct the interviews though. Sometimes he leaves it up to his staff, and that he probably seeks judges who approach the role with humility and a recognition of the separate branches of government.

Ducey laid out his judicial selection process in a “fireside chat” with former U.S. Sen. Jon Kyl in 2019.

Ducey point blank says he has asked the commission to send him more names. He said he doesn’t like the word “legacy” being used to describe this because it puts too much focus on the individual, but uses it anyway.

“These are legacy picks,” Ducey said. “These are people that almost all will outlive the term of the governor.”

When it comes to asking questions of his eventual appointments, Ducey said there isn’t a litmus test, but he likes to start with judicial philosophy. He went on to say he’s really trying to find out if the candidates want to be a judge or if they would be better equipped running for the Legislature.

“If they want to be a judge, that’s the person I want to select. If they want to make policy, they should go run for office,” he said.

Ducey also has made a habit of choosing judges from lower courts, which has heavily played into why he has made so many appointments, and will continue to do so. But less so on the Supreme Court where only two of his five picks came from a lower court – Beene and Justice Andrew Gould.

Bender compared that “strategy” to one a lot of Republican presidents have used to shape the federal court system.

“President Eisenhower was the one who started it. He started appointing people to the Supreme Court from the courts of appeals and he also ended up appointing people to the Supreme Court that he’d already appointed to the courts of appeals,” Bender said, adding that he views this as a problem because it shows a lack of diversity for justices’ backgrounds.

But for Ducey, Bender doesn’t view his picks to the Supreme Court as a negative in that instance.

“To me, that’s a strength that you have a court that is composed of people from different areas,” he said.

Ducey vetoes first bill this year

For the first time since 2019, Gov. Doug Ducey brought out his veto pen today saying no to an election bill from Rep. John Kavanagh that passed both chambers unanimously.

HB 2360 would give complete authority to the Secretary of State’s Office to operate and maintain the online voter registration system, removing it from the Arizona Department of Transportation.

Kavanagh had pitched the bill as putting the voter registration system in its rightful place under the Secretary of State’s Office, but Ducey‘s office panned it as unnecessary.

“The Arizona Department of Transportation has developed a site and a system that Arizonans recognize and appreciate,” Ducey wrote in his veto letter.

Ducey has not used his veto pen often, and this is his first veto since 2019.

In total, since 2015, Ducey has signed 2,016 bills and vetoed 80 — including today’s veto. His predecessor, Gov Jan Brewer, also a Republican, vetoed bills at much higher rate (141 vetoes to 1,782 bills signed into law).

“This falls under the category of it ain’t broke don’t fix it,” Ducey spokesman CJ Karamargin said.

A spokeswoman for Secretary of State Katie Hobbs said the office is “perplexed.”

“Especially considering it passed both chambers [unanimously]. This has been a deeply partisan session, this had support. We just don’t have a good explanation for it,” Hobbs’ spokeswoman Murphy Hebert said.

The bill says it would not have gone into effect until December 31, 2023, which would be plenty of time before the 2024 presidential election and under whoever becomes the secretary of state in 2022.

Ducey complimented county election officials in his veto letter and signaled that he could be signing more election bills, with plenty of controversial measures on the horizon.

“There are many changes to the laws governing elections in this state that could continue to improve Arizonans’ confidence in our election system,” he wrote.

Kavanagh told Capitol Times there were some problems with the way the bill divided power between the Secretary of State’s office and the county recorders and that it needed more detail. He said he expects to work on the bill during the interim and reintroduce it in 2022.

“I don’t really have a problem with that (Ducey’s veto),” Kavanagh said. “Some issues with the way the bill was structured came up and I agreed it probably needs some sort of rewrite. Maybe next year.”

Kavanagh said he introduced the bill at the behest of a county recorder who “didn’t think it was appropriate to have the election stuff in the Department of Transportation.”

It’s still possible the Legislature could opt to override the veto. Overrides only need two-thirds vote in both chambers – which has yet to happen while Ducey is governor – and it passed the House 58-0 and the Senate 30-0 already.

Reporter Nathan Brown contributed to this story.

Ducey, Garcia to debate in Phoenix, Tucson

Gov. Doug Ducey and Democratic challenger David Garcia will go head-to-head in back-to-back televised debates on Sept. 24 in Phoenix and Sept. 25 in Tucson.

The Phoenix debate, put on by the Clean Elections Commission, will be broadcast on Arizona PBS. The Tucson debate, put on in conjunction with Arizona Public Media and the Arizona Daily Star, will be broadcast in the Phoenix area by KJZZ.

“The Governor looks forward to sharing his record on the economy, historic investments in education, and work to make Arizona a safer, better place to live, work and raise a family,” Ducey’s campaign manager J.P. Twist said in a written statement.

Ducey participated in three general election debates with Fred DuVal in 2014. He rejected rival foe Ken Bennett’s requests for debates during the Republican primary this election cycle.

Just before the governor’s campaign announced Ducey would participate in two debates, Garcia’s campaign called for three televised debates, which would have included a debate in Yuma. The debates would have corresponded to Arizona’s three media markets.

“The voters have a right to hear from their candidates and so I challenge Doug Ducey to debate me at least three (3) times on television before the general election. Name the time, name the place and we will be there,” Garcia said in a statement.

Previous sitting governors have participated in two or fewer general election debates. Former Gov. Jan Brewer debated Democrat Terry Goddard just once. Former Gov. Janet Napolitano participated in two general election debates during both of her campaigns.

Gubernatorial debates

Phoenix

Time: 5 p.m. Sept. 24

Place: Arizona PBS studio

Moderator: Ted Simons of Arizona PBS

Tucson

Time: 7 p.m. Sept. 25

Place: Arizona Public Media studio, but broadcast in Phoenix by KJZZ

Moderators: Lorraine Rivera of AZPM, Steve Goldstein of KJZZ, Christopher Conover of AZPM and Joe Ferguson of the Arizona Daily Star

Ducey’s year to be measured by crisis management, not political gains

Arizona Republican Gov. Doug Ducey speaks during a news conference to give the latest updates regarding the coronavirus Wednesday, May 20, 2020, in Phoenix. (AP Photo/Ross D. Franklin, Pool)

Nobody could have expected the 2020 legislative session to turn out the way that it did, including Gov. Doug Ducey, who may have taken more losses than anybody in terms of pushing legislative priorities.

Some political consultants are hesitant to even call them losses, though, given how this session deserves an asterisk next to it like the 1994 Major League Baseball season that was cut short due to the players strike. Instead of a strike this year, there was a virus.

Most of Ducey’s legislative priorities died as the COVID-19 pandemic tightened its grip on the country, and although the House hasn’t called it quits as of May 21, many of those bills won’t return.

But even before the virus caused the session to recess for two months, things were not looking so hot for the governor in his sixth year.

Ducey laid out an ambitious agenda with dozens of policy priorities, many of which required legislation, in his January State of the State speech to kick off the legislative session. About half of those dealt with spending measures, which mostly failed to pass as forecasts became gloomier and priorities shifted to public health spending.

It’s more than likely a lot of those priorities will come back with a new life during a special session, said Scott Smith, former Gov. Jan Brewer’s chief of staff.

Smith, who currently is the senior vice president of governmental affairs for Highground Public Affairs, said there is still a lot of time left between now and the end of the year for Ducey to address issues through the Legislature in one or more subsequent special sessions.

“He controls the agenda when it comes to calling a special session … it’s under his purview and authority,” Smith said, adding that it will be determined on an issue-by-issue basis.

Ducey’s marquee education priority, “Project Rocket,” failed to launch, although the governor could revive the policy at least on a one-time basis through his discretionary COVID-relief money. Ducey has $68 million to spend on education.

The plan was to expand on a successful pilot program to help close the achievement gap in schools across Arizona, targeting low-income areas with lower-performing students. Neither caucus in the House nor Senate allocated money for it in their respective budget proposals, and then the COVID-19 pandemic put the nail in the coffin by forcing a so-called “skinny” budget to pass through so lawmakers could sit in recess.

But through multiple committee hearings, what seemed like a promising bipartisan solution to fund lower-performing schools began to lose support from both Democrats and Republicans, including Rep. Regina Cobb, the House Appropriations Committee chair. The Kingman Republican did not want to spend $44 million on the program. Whereas Rep. John Fillmore, R-Apache Junction, who is the House Education Committee vice chair, said he would not vote for it regardless.

Daniel Scarpinato, Ducey’s chief of staff, said the Governor’s Office has not yet determined how that money from the federal CARES act will be allocated, but they are in talks with the Arizona Department of Education on how to maximize the impact of where that money will be spent.

“[Superintendent of Public Instruction] Kathy Hoffman and her staff have been phenomenal to work with since the beginning of this crisis and I think it brought a lot of stability for our education leaders and parents and kids that they know what to expect in terms of those education dollars,” Scarpinato said.

Two of Ducey’s top officials told Arizona Capitol Times in early March that Project Rocket would see the light of day, but it would have been impossible to predict what was going to come.

“We fully expect Project Rocket to be included in the final budget agreement,” Ducey’s spokesman Patrick Ptak said at the time.

Now, more than two months later, Scarpinato said Project Rocket’s concept is still a really good one and a lot of the funding will depend on what the future budget is going to look like.

“There will inevitably have to be some budget adjustments because the revenues change dramatically,’ he said.

Smith commended the Ducey administration on being able to handle the pandemic in stride with an ongoing session, saying it is important to strike a balance between “protecting public health and simultaneously trying to restart the economy.”

“I believe when we look back on this, we will be very impressed and pleased with Governor Ducey and his team,” Smith said. “Far too many people are trying to politicize COVID-19, on both sides, and present it as an either or proposition that you have to be all in on protecting public health, or you have to be all in on getting the economy going again.”

He said that’s a false narrative.

Smith did note that blame shouldn’t necessarily fall on the Legislature though, because he said it’s incredibly difficult for a legislative body to respond to a crisis given the varying opinions of members from four different caucuses.

Stan Barnes, a former lawmaker and longtime GOP consultant, agreed with the notion that history will look back on this with clear eyes and see Ducey deserves great credit.

“I think he has managed to anger just about everyone, which I score as courageous,” Barnes said.

Also effectively on hold is the plan to close the prison at Florence. No news on that front has happened since even before COVID-19 when questions arose on where those 3,000-plus prisoners would go, considering that all state-run prisons were either at or near capacity and several county facilities also did not have the space.

Ducey did claim one nominal victory in the Department of Corrections by renaming it to the Department of Corrections, Rehabilitation and Reentry.

Other priorities that are now dead in the water included freezing regulatory board fees, raising salaries for correctional officers, funding drug addiction programs with funds from the state’s medical marijuana program, giving all state troopers body cameras and eliminating taxes on military pensions.

The latter stalled in the form of legislation from Sen. David Gowan, R-Sierra Vista, when it failed on the Senate floor 11 to 18. Gowan was one of five Republicans to vote “no” on the bill, and never brought it back for reconsideration. Since then, the Senate ended its legislative work for the year with its unilateral sine die adjournment.

Still, the session wasn’t all for naught for the governor. He succeeded in ensuring that insurance companies cover mental health in the same way as physical health as part of a larger mental health omnibus bill. Ducey signed the legislation dubbed “Jake’s Law,” in March after the bill was fast-tracked through both chambers.

From left are Sen. Kate Brophy McGee, R-Phoenix, Rep. Jeff Weninger, R-Chandler, Denise and Ben Denslow, and Gov. Doug Ducey. The Denslows are the parents of Jake Machovsky, the namesake of SB1523, a bill that requires insurance companies to cover mental health care. (Photo by Andrew Nicla/Arizona Capitol Times.)

The bill was named for Jake Machovsky, a 15-year-old who was hospitalized with suicidal thoughts and released days later because his health insurance wouldn’t cover treatment. After Machovsky died by suicide shortly after, his parents started the JEM Foundation to advocate for laws that increased access to mental health care and to get more people to talk about an often taboo topic.

The governor also earned wins by dedicating September 25 to civics education in schools, raised the passing grade for civics tests and allowed middle school students to take them, and ensured that the state’s Empowerment Scholarship Accounts program would cover all students on the Navajo Nation who want to attend private schools across the border in New Mexico.

It was a promise Ducey made at the end of the 2019 session.

The bill also stripped some oversight of the program from the Department of Education in favor of the governor-appointed State Board of Education, among other provisions in a floor amendment from the bill’s sponsor, Sen. Sylvia Allen, R-Snowflake.

Looking at the session overall, Scarpinato said it’ll be tough to measure this session on a “typical scorecard,” but pointed to legislative leadership as the big “story” of the
year.

He said the leaders stepped up and dealt with the crisis in a responsible way by approving a so-called skinny budget.

“We really give a lot of credit to the Legislature for really putting all of their priorities on hold,” he said.

Barnes said that when the history books are written, people will remember how Ducey handled the pandemic “and its wrecking ball impact on Arizona’s economy.”

“It won’t be a history of legislation that might have been,” he said.

— Andrew Nicla contributed to this story.

Editor’s note: this story has been corrected to state that Ducey’s priority to put more “unbiased” people on regulatory boards (SB1274) passed through the House on May 21 meaning it is no longer “dead.”

Ethics committee picks former Brewer aide to lead Stringer probe

The House Ethics Committee has retained the law firm Ballard Spahr to handle the ethics investigation against Rep. David Stringer.

Attorney Joe Kanefield will lead the Ballard Spahr team, according to a press release announcing Ethics Chairman Rep. T.J. Shope’s decision on Monday.

Kanefield is the head of the firm’s politics and election law arm, and served as general counsel to former Gov. Jan Brewer, state elections director and in-house counsel to the secretary of state and as assistant attorney general among other posts.

Kanefield did not immediately return a call for comment.

Reps. Kelly Townsend, R-Mesa, and Reginald Bolding, D-Laveen, have filed separate ethics complaints against Stringer, R-Prescott. The complaints target recorded comments Stringer made twice last year on race and immigration and multiple sex offense charges he faced in the ‘80s as reported by the Phoenix New Times.

Shope has urged anyone with additional relevant information to come forward to the committee, which may still widen the scope of the investigation if necessary.

Stringer will have an opportunity to provide his own comments to the committee regarding the allegations. He has so far ignored repeated calls for his resignation and has not returned multiple requests for comment on the investigation.

Five reasons Trump should build the wall himself

A nation without borders is like a house without walls — without any architectural integrity, a dwelling becomes a real hazard for every resident inside.

President Trump understands this truth more than any other president in our lifetime — but unlike his predecessors, he is determined to secure our Southern border and fix our broken immigration system.

Arizona Gov. Jan Brewer (Photo by Josh Coddington/Arizona Capitol Times) — Jan Brewer

As the debate over border security rages on, the crisis on the border continues to intensify. America is simply running out of time to address the ongoing catastrophe, leaving our communities exposed to illegal drugs, violent crime, and human trafficking.

Here are five key reasons why it’s time for President Trump to declare a state of emergency and quickly build a wall on the U.S.-Mexico border:

The Democrats are not willing to compromise on border security.

President Trump has done everything in his power to negotiate with the Democrats on border security — but they’ve rejected every border security proposal he has made. House Speaker Nancy Pelosi even shot down his latest compromise proposal before he even issued it.

While a bipartisan solution to the border security crisis would be preferable to declaring a state of emergency, it’s become clear that there’s no real hope of reaching any kind of compromise with a Democrat Party that has made obstruction the entirety of its approach to governing.

Sadly, the Democrats refuse to acknowledge that there is a real crisis on the border, dismissing President Trump’s call for border security as nothing more than a “campaign promise” to his base.

The human cost of illegal immigration is devastating.

When President Trump says that there is a crisis on the border, he isn’t manufacturing it. For years, human traffickers, drug smugglers, and other criminals have exploited our weak immigration laws to bring drugs and crime into America.

To make matters worse, a staggering 80 percent of women and girls are raped on the journey to America — a tragedy perpetuated by feeble border security laws that encourage illegal immigrants to employ violent gangs to escort them past overstretched U.S. authorities.

Taxpayers shoulder the financial costs of illegal immigration.

Every government failure has a price — and when it comes to our failed immigration system, American taxpayers are the ones who pay that price.

In 2017, the Federation for American Immigration Reform (FAIR) estimated that the annual cost of illegal immigration is an astounding $116 billion, or more than $8,000 per immigrant. Meanwhile, the economic cost of the opioid crisis, an epidemic largely fueled by the illegal drug trade, is estimated at about $500 billion per year.

The physical barrier President Trump wants to build on the border would only cost $5.7 billion — a miniscule fraction of what taxpayers end up paying for illegal immigration and the drug crisis every year, and far less than the $11 billion cost of the recent partial government shutdown.

The experts want a border wall to help them fight illegal immigration.

While Democrats continue to ridicule President Trump’s stance on immigration, Border Patrol officials continue to ask for a wall on the border, arguing that physical barriers are necessary to prevent migrants from entering the country illegally.

“Everywhere where a wall was built — in conjunction with a multi-layer approach of infrastructure, technology, and personnel — it works,” said Mark Morgan, the Border Patrol chief under President Obama, in January. “Illegal immigration where the wall was has been reduced 90 percent.”

Most rank-and-file members of the Border Patrol agree. According to a 2018 poll, 89 percent of Border Patrol agents agree that a “wall system in strategic locations is necessary to securing the border.”

The border crisis is not going to solve itself.

The problems associated with illegal immigration will not disappear if we ignore them. While the number of illegal immigrants entering the country each year fluctuates with economic conditions, criminal elements have an entirely different set of motivations than other migrants, such as exploiting the lucrative U.S. market for illegal narcotics.

Without a border wall, criminal gangs like MS-13 will continue their expansion into American cities, predatory “coyotes” will continue to abuse women and girls while transporting them across the border, and American taxpayers will continue to pay the economic price of unfettered illegal immigration.

Doing nothing hasn’t worked, and the Democrats are all out of ideas. If they won’t give up their obstructionist political tactics and let President Trump build the border wall we need to protect American communities, he’ll just have to do it himself under the authority Congress has already given the president to recognize national emergencies like the one taking place on our southern border.

Abraham Lincoln famously observed that “a house divided against itself cannot stand.” Well, neither can a house without walls.

— Jan Brewer is a former governor of Arizona.

Former AG Grant Woods dies at 67

Former Attorney General Grant Woods at a 2013 press conference (Capitol Media Services file photo by Howard Fischer)

Former Republican Attorney General Grant Woods who left the party to become a Democrat died Saturday.

The cause of death for the 67-year-old Woods was not immediately made available.

Woods, who entered politics as chief of staff to the late Sen. John McCain, served eight years as the state’s top prosecutor. That paralleled the time that Fife Symington was governor, a fact that often resulted in the pair squabbling over issues like the governor ordering Woods to drop his historic lawsuit against tobacco companies, an order he ignored and managed to get a settlement of hundreds of millions of dollars for the state.

And it was Woods, after Symington was convicted in federal court of defrauding creditors, who told the governor he legally had to leave office and could not wait while the case was on appeal.

There were other ways Woods developed a reputation as someone who did not toe the party line.

In 1997, for example, he helped put a measure on the ballot to prevent lawmakers from tinkering with what voters had approved.

That followed the 1996 voter approval of a measure allowing doctors to prescribe marijuana and other illegal drugs. The Republican-controlled legislature, insisting voters didn’t understand what they were doing, effectively repealed it the following year.

Woods said while he opposed the 1996 initiative, he did not think it was right for lawmakers to second-guess what voters had enacted. The measure, approved in 1998, became the Voter Protection Act.

Out of office for nearly two decades, Woods formally broke with the GOP in 2018. He said at the time much of that was due to his frustration with the Republican Party and that its members would not stand up to President Trump.

He also endorsed Kyrsten Sinema in her bid 2018 for U.S. Senate where she became the first Democrat elected from Arizona in two decades.

Woods subsequently weighed his bid for the U.S. Senate seat formerly occupied by McCain before he died, but ended backing out. That race subsequently was won by Democrat Mark Kelly.

While on the political sidelines since then he has stayed involved in politics, becoming a verbal critic of the state Senate conducted audit of the 2020 returns, calling it “a clown show” and saying those hired “have no idea what they’re doing.”

There are other issues where Woods did not go along with what at the time was the prevailing GOP philosophy.

In 1996, for example, a group launched an initiative drive designed to reduce the flow of people entering the state illegally, with sanctions against employers who hire people not here legally and mandatory cooperation of local law enforcement with federal immigration officials.

Woods lined up against the measure along with fellow Republican Lisa Graham Keegan, the state’s superintendent of public instruction.

His bucking of the GOP line goes back even farther.

In 2010 he threw his support behind Democrat Felecia Rotellini for the job he once held, saying she was the better candidate than Republican Tom Horne. That, however, didn’t help Rotellini win.

But that same year he was co-chair of Republican Jan Brewer’s campaign to earn a full term of her own as governor after she inherited the position following the resignation of Janet Napolitano despite the fact that he did not support her decision to sign SB1070, a wide-ranging measure designed to give police more power to detain and question those they suspected of not being in the country legally.

Four years later — and while still a Republican — Woods again crossed party lines with a 2014 commercial supporting Democrat Fred DuVal for governor over Republican Doug Ducey. That endorsement, however, was not enough to help the Democrat win the race.

Woods also was an early supporter of an effort to repeal a 2008 voter-approved measure which denied the rights of gays to marry.

He opposed various efforts pushed by Republicans and their allies in the business community to amend the Arizona Constitution to allow lawmakers to limit lawsuits and jury awards.

And he worked with former Phoenix Mayor Paul Johnson, a Democrat and one-time gubernatorial hopeful, to create “wide open primaries,” where any registered voters would be able to cast a ballot in the primary election, with no regard to party. That never was enacted.

During his time as attorney general, Woods developed a reputation for enforcement of laws protecting consumers.

For example, he filed suit in 1993 against two Southern Arizona stores that he said were telling customers that what they were buying was handmade Indian jewelry and that the stones were genuine.

He also warned retailers that they cannot claim that buyers are getting a break from the “manufacturer’s suggested retail price” if the item rarely is sold for that figure.

And he went after Circle K for advertising it was selling a “new” formula of gasoline when it ended up being the same old stuff the company had sold before. Without admitting a violation, the company agreed to donate 100,000 gallons of gas to charity and $30,000 in costs.

There were some controversies.

Woods and Rob Carey, his chief investigator, were the subject of a criminal probe involving commingling various office funds, including money raised for a Martin Luther King Jr. scholarship and luncheon. Some of the MLK funds were used for staff retreats and spent on beer and rental of a karaoke machine.

The case ended in early 1996 when the pair admitted funds were spent for purposes “other than (those) for which they were solicited or collected.” They paid a civil fine of about $30,000.

Woods, as attorney general, also filed suit to block the designation of 2 million acres as critical habitat for the Mexican spotted owl, saying, among other things, that the state would suffer financial harm from the loss of revenues in timber sales and grazing rights.

And in 2009 he worked on behalf of the payday loan industry to be allowed to remain in business with their high-interest, short-term loans despite a public vote the year before to the contrary.

He is survived by his wife, the former Marlene Galan, who was a Phoenix TV reporter when they met.

Former Gov. Jane Dee Hull, husband die after long illnesses

Former Governor Jane Dee Hull and her husband Terry died overnight Thursday in hospice care within hours of each other.

Gov. Doug Ducey confirmed the news Friday morning and expressed his condolences for Hull in a prepared statement, in which he ordered all flags in the state be lowered to half-staff.

“Through 25 years of public service, Governor Hull steered Arizona through sometimes turbulent political times, providing steady leadership and an unwavering commitment to doing what’s right and ethical,” Ducey said. “She will be remembered for her strength of conviction, grace and ability to bring people together for the long-time benefit of all Arizonans.”

Hull’s family issued a written statement to honor who they knew as Grammy Jane and Grandaddio. The couple was married 66 years.

“Our parents love for Arizona was only exceeded by their love for each other and love of family and friends. We miss them both already, but we all have wonderful memories that will always be softly imprinted upon our hearts. And we are so very proud that they touched so many people in so many positive ways, including every member of our family,” the written statement read.

Hull, 84, was an acclaimed Arizona statesman with a storied political career that spanned decades, one she started after her career as a school teacher. She started in the State House in 1978 and served as the first female speaker of the House, was elected secretary of state in 1994 and ascended to governor following Governor Fife Symington’s resignation in 1997, where she served until 2003.

Hull was speaker of the House during Symington’s first two years and then Secretary of State for the remainder of his term. Symington said he remembers her as a colleague and a good friend.

Former Arizona Governor Jane Dee Hull at the 2019 AZBio Awards ceremony on October 2, 2019. (Photo by Gage Skidmore/Flickr)

“She served Arizona well and I’m very saddened by this — a very nice person, very generous spirited and extremely bright,” Symington said. “Her life’s work was serving the people of Arizona in whatever capacity she found herself in.”

As the state’s 20th governor and the second woman elected to the office, Hull helped establish Arizona’s version of the Children’s Health Insurance Program, KidsCare, which helped poor families that made more to qualify for Medicaid. Hull also hiked sales taxes to fund education and pushed to pass Proposition 301, which raised teacher pay and school funding.

Following the death of Rose Mofford in 2016, Hull was the oldest-living Arizona governor and was one of the longest serving elected officials in the state’s history.

After she left office, she had a wealth of experience to offer, some of which she shared with former Gov. Jan Brewer, the state’s fourth female governor following Janet Napolitano.

“She gave me sensible advice about how tough it was getting along with the Legislature — little did she know I was headed in for a bad time because of the budget when we were in a deficit,” Brewer said. “She told me, ‘you gotta do what you think is the right thing to do and move on. Do what you think is right and then be accountable for it.’”

Brewer said she and Hull were close, as the two served in the state House together and both took the same path to the Governor’s Office. What they shared, Brewer said, was a work ethic and a sense of being true to themselves.

While Hull was a diligent taskmaster, she was also fun, lighthearted and wasn’t shy to let her guard down, Brewer said. In the mid-80’s when the two flew to Washington, D.C. to see then-President Ronald Reagan, they shared a hotel room and some secrets.

“I found out that Jane couldn’t comb her hair herself, so I ended up doing her hair all the time, I was her beauty operator,” Brewer said. “Word has it that she worried about her hair and she would go get her hair done two or three times a week.”

Jane Dee Hull, third from the left, was part of a group of women known as the “Fab Five” who won election to the top statewide offices in 1998. Posing for this photo on inauguration day in 1999 from left are Lisa Graham-Keegan, superintendent of public instruction; Janet Napolitano, attorney general; Hull, governor; Polly Rosenbaum, a state senator who represented Gila County for 46 years; U.S. Supreme Court Justice Sandra Day O’Connor, who administered the oath of office to the Fab Five; Carol Springer, state treasurer; and Betsey Bayless, secretary of state. PHOTO #99-9049 COURTESY ARIZONA STATE LIBRARY

Brewer said Hull’s legacy spans decades of public service, in which education and water conservation were top of mind. In the state House, Hull worked closely with then-Governor Bruce Babbitt to rework major pieces of the state’s water policy, which eventually turned into the Groundwater Management Act of 1980 — the most influential piece of water conservation legislation in the state that shaped its water future.

But as a former school teacher, education legislation had a special place in her heart, Brewer said.

“She fought for educators and for the kids in our state, on and off our public schools and on the Indian Reservation,” Brewer said. “She continued that all the time she was in the legislature, all the time she was Secretary of State and certainly when she was governor.”

Besides Prop 301, one of the things she championed was a program called “Students First,” which came from a lawsuit in 1998. Then, the state was under a court order to do something about K-12 school capital funding inequities.

Doug Cole, Symington’s Chief of Staff and then aide to the speaker of the House at the time, said the bill passed after about six rounds of trying to get something through the Legislature.

Hull was a relentless lobbyist, often popping in unprompted in the Legislature.

“She was hands on tenacious, walking the halls of the House and Senate going into members’ offices and it came all the way down to the last vote,” Cole said. “We haven’t seen that since then, to that degree.”

Cole said she was equally spontaneous, serious and funny, even in challenging situations. When Symington took office, he inherited an unbalanced budget from Mofford that also needed trimming, including a small tax cut, the first in years.

Hull wanted to have some fun with it, so she came up to the office wearing Edward Scissorhands gloves to poke fun at his cuts, Cole said. But what stood out more than her humor was her conviction and consistency, Cole said.

“You always knew where Jane Hull stood, there was no equivocation with her” Cole said.

Glendale, Tucson voters reject city council salary increases

Voters in Glendale and Tucson overwhelmingly voted down large raises for city councilors this week, marking the latest in a series of ill-fated attempts by policymakers to increase their pay.

Tucson City Council members, who earn $24,000 annually, and the city’s mayor, who earns $42,000, haven’t received raises since 1999. Voters in Glendale, where the mayor earns $48,000 and council members make $34,000, haven’t approved raises since 2006.

And at the state level, voters have seen 18 ballot measures asking for legislative raises but only approved two. The last successful measure, raising lawmaker salaries to $24,000, was approved in 1998. The most recent, a question on the 2014 ballot to raise lawmakers’ salaries to $35,000, failed by a nearly two-to-one margin.

Longtime Capitol lobbyist Barry Aarons said consistent votes against higher compensation at the state and local level reflect Arizonans’ attitudes toward their form of government.

“I think we still have a sense in Arizona that our city councilmen and our supervisors and our legislators are citizen participants,” he said. “There is a hesitancy to give them money that would make them feel like they are now professional government officials.”

Supporters of pay increases at both the state and local level contend that while city council or legislative positions might be part time on paper, they demand long hours.

Arizona’s 10 largest cities pay their city council members between $18,000 (Scottsdale) and $62,000 (Phoenix), but most fall in a $20,000 to $35,000 range.

State Sen. Paul Boyer, R- Glendale, voted against the city’s attempt to raise its mayor’s pay from $48,000 to $68,490, boost city council salaries from $34,000 to $52,685 and permanently remove the ability for voters to set elected officials’ salaries by instead tying their wages to the median wage for city employees.

Boyer said he didn’t lobby against the proposal or tell other people to vote against it. But he also questioned whether local officials should earn more than lawmakers.

“They’ll say that they’re year-round and we’re not,” Boyer said. “I would dispute that.”

The Commission on Salaries for Elective State Officers, which is statutorily required to submit a report to the governor every other June, hasn’t met since December 2015 and has no meetings planned. Attorney John Bouma, who represented then-Gov. Jan Brewer in legal challenges to the state’s controversial immigration law, SB1070, and was killed in January when he was struck by two cars, is still listed as chairman of the commission.

Lawmakers attempted their own end-run around voter reluctance to approve raises this spring, passing a bill that would have more than tripled daily allowances for rural legislators. Gov. Doug Ducey vetoed the measure.

During debate on the bill, lawmakers including Sen. David Livingston, a Peoria Republican who sponsored the measure in the Senate, tied proposed per diem increases to a lack of raises.

“Think of any job where you have not had a raise since 1985,” Livingston said. “That’s what this is fixing.”

While he vetoed the measure, Ducey signaled that he’d be willing to consider a bill that would give rural lawmakers per diem increases. Lawmakers are expected to introduce another version next year.

Convincing voters that elected officials should be paid more is a tough sell, said Kevin DeMenna, a longtime Capitol lobbyist who said that higher wages can bring higher-quality representation.

“It’s a true contradiction,” he said. “Every right-thinking voter recognizes that if you want quality, you should pay for it.”

But when it comes to policymaking, voters have a perception that the positions don’t merit much money, he said.

Despite his beliefs that lawmakers should be paid more, DeMenna said he has turned down suggestions that he serve on the Commission on Salaries for Elective State Officers because he doesn’t want to volunteer for a losing effort.

And he said he’s not sure what it will take for voters, at the state or local level, to pass raises.

“When you want to build flood control, it takes a good flood,” DeMenna said. “If you really want to build highways, stand in traffic. I don’t know what it will take.”

Gov. Ducey sticks to spirit of merit selection, shuns partisanship

The Arizona Republic recently tweeted: “Why is Governor Ducey largely rejecting Democrats as judges?” The answer: he is not. Ducey has been the least partisan of any governor with respect to the appointment of judges under our merit selection system. The linked-to Op Ed sub-headline is: “Judges should be selected on their merit, diversity and independence, not their partisan background.” In my opinion, of any governor in Arizona history, Democrat or Republican, Ducey has been the most faithful to the goals of merit selection. Merit selection under Ducey has never been less partisan or more inclusive.

I am a retired Maricopa County Superior Court commissioner and Latina legal community leader. I’ve been a member of Los Abogados, the Hispanic Bar Association for 20 years and I serve as one of the Region XIV deputy vice presidents for the National Hispanic Bar Association. For more than 10 years, I have co-coordinated the Latina Mentoring Project, the largest mentoring and pipeline program of its kind in Arizona with over 200 mentor and mentee participants. I respectfully disagree with the opinion’s central premise.

A review of the judicial appointment statistics maintained by the Arizona Supreme Court shows that Governor Ducey has appointed more judges outside of his political party than any other former Arizona governor under merit selection. On November 28, 2016, Ducey made history by appointing the first Latino ever to the Arizona Supreme Court, Justice John Lopez. On April 25, 2019, Governor Ducey made history again, by appointing a second Latino to the Arizona Supreme Court, Justice Jim Beene.

Women make up 37 percent of Ducey’s appointments, the highest of any Arizona governor. This is true for his appointments to both the trial and appellate courts. On April 10, 2017, Ducey appointed Judge Maria Elena Cruz (a Democrat and former Yuma County presiding judge) and Judge Jennifer Campbell to two vacancies on Division One of the Arizona Court of Appeals. On September 29, 2017, he appointed a third woman, Judge Jennifer Perkins.

Historically, Arizona’s governors almost never ventured outside of their own political party with appellate court appointments. For example, Gov. Jan Brewer appointed 10 appellate judges, all Republicans. Gov. Janet Napolitano appointed 12 appellate judges, all Democrats. Ducey’s first-term appointment of Judge Cruz to the Court of Appeals is the first out-of-party appointment to the appellate courts, going back almost 20 years to Gov. Jane Hull’s administration.

Arizona started appointing judges under the merit selection system in 1975. From 1975 to 2015 (Gov. Raul Castro to Brewer), seven of Arizona’s nine governors appointed judges from their political party between 72 percent and 100 percent of the time. Gov. Wesley Bolin, who served from October 1977 to March 1978, appointed two merit selection judges, one a Democrat and the other a Republican. Hull, a Republican, appointed Republicans 64 percent of the time.

The statistics show Ducey has recommitted the state to nonpartisan and diverse appointments, with merit (and not party) as the primary consideration. His appointments have been the least partisan – only 61 percent of his judicial appointments have been Republicans. By contrast, Governor Brewer appointed only two Democrats to the Maricopa County Superior Court during her tenure. Notably, on January 3, 2018, Governor Ducey appointed three Democrats to the Maricopa County Superior Court on the same day and has appointed 14 Democrats and 11 Independents to positions statewide in just his first term.

As for diversity, Ducey’s appointments to date are already among the most diverse – 18 percent of his appointments have been minorities, second only to Napolitano at 23 percent. Arizona’s seven other governors appointed minorities between zero percent and 16 percent of the time.

Likewise, the nominating commissions have not injected partisanship into the nominating process. Qualified applicants, regardless of partisan affiliation, are forwarded to the governor.

(Full disclosure: Ducey appointed my husband to the Maricopa County Superior Court Nominating Commission and he was unanimously confirmed by the Senate Judiciary Committee.) Indeed, the Appellate Court Commission sent up the name of every Democrat and every diverse candidate who applied to fill the last Supreme Court vacancy.

Misleading or factually inaccurate attacks on merit selection undermine the public’s confidence in the judiciary. Ducey’s appointments have been the least partisan and the most diverse of any governor, Democrat or Republican.

Mina Mendez is a retired Superior Court commissioner and runs a statewide mentoring program for Latina law students and lawyers.

Governor open to requiring childhood vaccinations

Calling it a matter of public safety, Gov. Doug Ducey wants all youngsters in Arizona public schools to be vaccinated against various childhood diseases.

But the governor isn’t ready to mandate it – or take away the right of parents to opt out for personal reasons – at least not yet.

In an interview Wednesday with Capitol Media Services, Ducey said there has been a “slight uptick” in the number of kindergartners and sixth graders who do not have the required inoculations. And in virtually all of those cases, the reason is personal: The parents simply don’t want their children vaccinated.

That is their right under current Arizona law. All it takes is parents signing a form.

But it also puts Arizona in the minority of states that allow opt-outs for personal reasons.

Ducey said as far as he’s concerned, all children should be vaccinated against diseases ranging from mumps and rubella to chickenpox and measles. And he brushed aside claims by some that the vaccines have side effects, including a claimed link to autism.

“I’ve heard those rumors and those rumors concern me,” he said. “But I think that the medical evidence and the subject matter experts would say that those rumors are unfounded.”

That, however, still leaves the question of Arizona’s 5.4 percent noncompliance rate for personal reasons. And that’s on top of the 0.7 percent of children who have medical reasons they cannot get the shots.

Ducey said his first choice would be more public education.

And if that doesn’t work, should the personal opt-out be repealed?

“I think that’s something that’s worth reviewing,” he said.

The issue, Ducey said, is one of public safety.

“We want to have our kids inside of public schools be as safe as possible and avoid whatever diseases these vaccinations prevent,” the governor said.

The uptick in noncompliance, he said, is concerning.

Ducey calls it slight, going from 4.7 percent of children entering kindergarten to 5.4 percent.

But in real numbers, a 5.4 percent rate of personal noncompliance means close to 60,000 children in public schools without the required immunizations, an increase in one year of 7,700. There 1.1 million children in Arizona public schools.

What concerns the medical community is the need to create “herd immunity.”

There always will be some children who cannot get vaccinated against certain diseases, whether for health or religious reasons. But if pretty much everyone else is vaccinated, the chances of a disease spreading through a school from one infected child to others is much reduced.

Ducey said his first step is education – and perhaps a bit of pressure.

“I want to take advantage of the governor’s bully pulpit to make people aware of vaccinations,” he said.

Still, Ducey conceded that may not be enough.

“I think it may be time to reconvene and talk about how we can reform and improve law or policy,” he said. But even then, the governor said all that should be focused on educating parents to gain voluntary compliance.

He declined to be critical of the parents who refuse to immunize their children.

“We have to believe that they’re acting in what they believe are the best interests or best intentions of their children,” Ducey said. “I want to make sure they have the facts.”

The governor acknowledged that, in some ways, his views are colored by the fact that his parents vaccinated him and that it never occurred to him not to do the same for his three boys.

“I have not talked with a parent who has chosen to opt out of this and heard their reasons,” he said.

One starting point, he said, would be to look at what other states have done.

“Are there states that do it better?” Ducey asked.

Around the region, only Colorado and Utah allow for personal exemptions according to the National Vaccine Information Center. In fact, according to that report, California even eliminated the religious exemption.

Whether eliminating the personal exemption increases inoculation rates is less clear.

The Centers for Disease Control reports that for the MMR vaccine – measles, mumps, rubella – that 94 percent of Arizona kindergartners were immunized. That compares with 97.3 percent in California, 95.5 percent in New Mexico and 90.9 percent in Nevada.

In the other states in the area that allow personal exemptions, the rate was 93.8 percent in Utah and 87.3 percent in Colorado.

The aim of such a study, the governor said, would be to see if there is a “model law or reform that we could apply.”

The last time Arizona lawmakers dealt with the issue was in 2013 when they voted to allow foster children to be placed in homes with other youngsters who are not immunized.

That move came amid objections from some lawmakers who said it puts foster children, who are technically wards of the state, at risk for disease. But several proponents argued that the bigger concern is getting children into a loving home.

Jan Brewer, who was governor at the time, signed the measure. But she also directed state agencies to place very young children in homes where youngsters already living there have been vaccinated.

One thing state health officials here have found is an almost direct relationship between affluence and opting out of immunization.

In the Tucson area, for example, the rate of personal exemptions is below 2 percent in the areas in and around the center city. By contrast, it tops 6 percent in the Catalina Foothills, Oro Valley and Tanque Verde.

A similar pattern plays out in the Phoenix area, with the highest rates of exemptions — above 14 percent — in the Fountain Hills and Rio Verde area.

In the rest of the state, the highest rates of those opting out are in Prescott, the Cottonwood-Sedona area, and Page.

Health club chain loses challenge to Ducey’s executive order

FILE - In this July 2, 2020, file photo, a trainer, top, at Mountainside Fitness, works with a client in Phoenix. Mountainside Fitness CEO Tom Hatten said Friday, July 3, he would keep his chain open for now. “We are going to stay open until we have our day in court, which is Monday morning,” Hatten said at a Mountainside location in Scottsdale. “If the court does not allow a stay, we will comply and respect the court’s decision. We will deal with being closed again.” (AP Photo/Ross D. Franklin, File) — FILE – In this July 2, 2020, file photo, a trainer, top, at Mountainside Fitness, works with a client in Phoenix. Mountainside Fitness CEO Tom Hatten said Friday, July 3, he would keep his chain open for now. “We are going to stay open until we have our day in court, which is Monday morning,” Hatten said at a Mountainside location in Scottsdale. “If the court does not allow a stay, we will comply and respect the court’s decision. We will deal with being closed again.” (AP Photo/Ross D. Franklin, File)

A judge on Tuesday rebuffed a bid by a locally owned chain of fitness clubs to remain open while it challenges the order by Gov. Doug Ducey shuttering all of them through July 27 — if not longer.

In an extensive ruling, Maricopa County Superior Court Judge Timothy Thomason, an appointee of former Gov. Jan Brewer, said the evidence shows that Mountainside Fitness is a “good citizen that went above and beyond what was necessary to ensure the health and safety of its patrons and employees.” And the judge said courts have to be sure that government officials, in closing down private businesses, are not exceeding their authority.

But Thomason said that, at least at this point, there is not enough evidence to show that Ducey acted illegally in shutting down not just Mountainside Fitness but also other chain and mom-and-pop operations — at least not enough at this point to quash the governor’s June 29 executive order. It was issued following a spike in COVID-19 cases after Ducey allowed businesses, including gyms, that had been closed in March, to reopen in May.

Doug Ducey

None of that means that the judge won’t eventually conclude, following further hearings, that Ducey exceeded his legal authority.

But attorney Joel Sannes said that will now require presenting evidence and witnesses, something that could take weeks. And by that point, he acknowledged, the governor’s order affecting gyms and fitness clubs may have been lifted, making it pointless to continue the lawsuit.

Even then, there’s no guarantee that Thomason eventually will side with Mountainside or conclude that gyms can reopen despite what Ducey ordered. In fact, the judge called it “unlikely” that the company will prevail, even after a full-blown hearing.

Still, Sannes said plans are to proceed with the case. In the interim, however, Mountainside will abide by the governor’s latest order, closing its doors Tuesday afternoon at its 18 locations.

Strictly speaking, Tuesday’s order affects only Mountainside Fitness and Fitness Alliance whose challenge to Ducey’s order was consolidated with this case. But Sannes said it could be seen as setting a precedent of sorts for other similar places.

“They’ll have to make the decisions on their own,” he said.

Sannes warned, though, they remain open at their own risk now that Thomason has concluded, at least for the time being, that Ducey was acting within his emergency powers. And he pointed out that the state already had started efforts to enforce the closures even before Tuesday’s ruling.

Tom Hatten, founder and CEO of Mountainside Fitness, reacts Tuesday to a court ruling throwing out his challenge to the decision by Gov. Doug Ducey to close gyms through at least July 27. (Capitol Media Services photo by Howard Fischer)

“The state may become even more serious about enforcement for gyms that choose to stay open and fitness centers that choose to stay open,” Sannes said. “They have to evaluate the consequences just as we have.”

Gubernatorial press aide Patrick Ptak said this was the outcome his boss expected.

“The issue is about protecting public health and containing the spread of COVID-19,” he said in a prepared statement. “Businesses need to comply with the public health orders.”

But this isn’t the only legal fight Ducey has on his hands.

Xponential Fitness has filed its own complaint in federal court alleging that the governor’s order violates a host of federal constitutional protections and that it violates the right of affected businesses to have due process before being shut down. The company has 50 studios around the state operating as Club Pilates, Stretch Lab, CycleBar, Pure Barre, Yoga Six, AKT, and Row House.

U.S. District Court Judge Diane Humetewa is scheduled to hear arguments in that case this coming week.

The governor’s office is likely to present the same evidence at that time that it did in this case, evidence that Thomason found sufficiently compelling to presume that Ducey had a legitimate reason to shut down the gyms. That includes statements from state Health Director Cara Christ and Marjorie Bessel, chief clinical officer at Banner Health.

Both are doctors. And both said they believe that indoor gyms and fitness centers present high risks of infection.

“Physical exercise is often not conducive to wearing a mask,” Thomason wrote.

“Exercising also results in respiratory droplet secretions that can easily be spread,” the judge continued. “Physical distancing can be difficult in gyms.”

Thomason acknowledged that some gyms say they are complying with protocols designed to protect public health. But he questioned whether that really does any good.

“The medical professionals feel that, even if gyms follow all protocols, there is still an unacceptable risk of infection,” Thomason wrote.

“Many fitness center members return to the center several times a week, increasing the risk of infection,” he said. “Other states have closed gyms and fitness centers.”

But the judge also fired a warning shot at the governor, saying he can’t keep facilities closed forever based on these fears.

He pointed out that, at least on paper, Ducey’s order allows gyms to reopen once they have completed and submitted a form prepared by the state Department of Health Services “that attest the entity is in compliance with guidance issued by ADHS.”

Only thing is, those forms are not now available. In fact, attorneys for the state could say only that the form “hopefully” will be available by July 27.

“Justice delayed is indeed justice denied,” Thomason wrote.

“If process is not provided in a reasonably timely fashion, then there really is no due process,” he continued. “In sum, the process provided must be adequate.”

And Thomason emphasized his point with a threat of sorts.

“If the form is not available well in advance of July 27, then the governor runs the real risk of depriving aggrieved businesses of any real process at all,” the judge said. “If meaningful process is not provided, the injunctive relief may ultimately be ordered.”

Tom Hatten, founder and CEO of Mountainside, said the judge’s order shows just how much deference Ducey — and most governors — are given in state laws to issue executive orders and have them upheld. And he said that should alarm owners of other firms that are not affected, at least not yet, who would be subject to “wide-ranging authority that’s arbitrary in its nature, very difficult to fight against.”

Does Hatten believe lawmakers should rein in the governor’s power to issue these orders?

“Absolutely,” he responded.

Hatten said he will keep the estimated 1,500 employees on payroll while the legal fight plays out and that members were not billed this month.

He dodged questions about whether gyms, by their nature, are more hazardous than other businesses because people are working out, raising the possibility that droplets with the virus could become aerosolized and travel more than six feet.

“There’s no evidence that the spike came from health clubs or the fact that you’re standing six feet (apart) and working out or you’re on a treadmill six feet away, there’s just nothing that proves that,” he said.

“What we do know is it’s still spreading,” Hatten continued. “There’s theories as to why.”

Hobbs keeps donations secret for inauguration events

Lake, Hobbs, governor, gubernatorial, election, general election, ballots, Finchem, Hamadeh, Mayes, Kelly, Trump, election deniers — Democratic Arizona Governor-elect Katie Hobbs speaks at a victory rally on Nov. 15 in Phoenix. (AP Photo/Matt York)

By Bob Christie

Incoming Arizona Gov. Katie Hobbs is kicking off her term with a celebratory ball, a first for a new governor since Fife Symington had one in the 1990s.

But Hobbs, who touted transparency as part of her leadership, has refused to disclose which people or corporations are paying for the party.

And the lack of full public disclosure continues with her taking the oath of office on Monday. That event, four days before the ceremonial oath, will be closed to the public and media, with the exception of a pool news photographer.

And the costs of that Thursday ceremony are being picked up by special interests, including lobbyists, companies that do business with the state, developers and builders. But the new administration, while listing official “sponsors” for the event, has been unwilling to share how much each is paying for that privilege.

The incoming governor’s unwillingness to share details of the events publicly, how much they will cost, just who is paying and how much stand in contrast to her promise to make her administration “the most ethical and accountable” in history.

On her “katiehobbs.org” website, she vows to make state government more transparent, “because the people deserve to know what their leaders are doing with their money.”

That reticence to share information about the source and use of the funds, at least for now, is a change from the three previous administrations, which were open with the costs of the inauguration and related events – and the fundraising efforts needed to throw big bashes without spending too much of the taxpayers’ hard-earned cash.

When Democratic Gov. Janet Napolitano took the oath of office in 2001, she collected $150,000 from donors and those attending four inaugural receptions, followed by public disclosures.

But that wasn’t enough to cover all the costs. So the state treasury also coughed up $50,000, mainly for renting and staffing the audio-visual equipment for the large-screen TVs that ensured even those in the back of the Capitol courtyard could see what was happening.

Republican Gov. Jan. Brewer’s 2011 inauguration was cheap by comparison as the state struggled with fallout from the Great Recession and cratered state revenue. The event cost $65,000, and expenses included renting the chairs and other necessities to house a large Capitol crowd and covered $13,000 worth of keepsake coins stamped with her likeness for guests.

Brewer raised $200,000 for the event and no tax dollars were used.

And the leftover cash was used to renovate the governor’s offices on the 9th floor of the executive tower.

Outgoing GOP Gov. Doug Ducey was inaugurated in 2014 and 2018, and both times he tapped special interests like lobbying firms and big businesses to pay for some of the costs.

The 2018 event brought in cash by selling off special seats. Acquiring a pair of VIP seats costs a minimum of $10,000, which also got entrance to a special reception. Bigger checks added a photo with Ducey, and a $25,000 payout netted six seats in the front rows, three parking passes, the reception and photos, inaugural pins for all six and corporate logos on programs and the inauguration website.

This year, however, Hobbs press aide Joe Wolf said no one will have to buy tickets to watch the Thursday ceremonies.

But that doesn’t mean the incoming governor isn’t tapping donors, special interests and firms that do business with the state.

A list of event sponsors on the official state inauguration web page leads with Arizona Public Service Co., suggesting the state’s biggest utility is the single largest donor.

The company may have some fence-mending to do with the new governor.

In 2021 it gave $100,000 to the Republican Governors Association. It hasn’t yet disclosed how much it spent in 2022.

And the RGA, in turn, financed millions of dollars in TV commercials attacking Hobbs, much of that accusing her of being lax on border enforcement.

Neither aides to Hobbs nor APS will disclose how much they are now donating to the ceremony, with the company instead saying only that it is joining with other Arizona businesses in supporting the new governor’s inauguration.

“This support is directed specifically to the 2023 gubernatorial inauguration committee, meaning it can be used in support of all inauguration functions,” the statement said. “This an important event for Arizona and its citizens; and we are pleased to be a participant.”

Others listed on the inaugural committee’s website as opening their checkbooks for the event – but with no amounts – include the insurers who provide state Medicaid services, a public affairs and consulting firm for the mining industry, developers, builders, lobbying firms and Hensley Beverage. Hensley is controlled by Cindy McCain, the widow of Republican Sen. John McCain, who was the target of vitriol by Republican Kari Lake during her losing campaign against Hobbs.

“This is a private event not being paid for with public funds,”’ said Hobbs press aide Murphy Hebert when asked for specifics.

Other officials who take office Monday include Adrian Fontes, a Democrat who is replacing Hobbs as secretary of state, and Kris Mayes, who defeated Republican Abraham Hamadeh for attorney general in what is believed to be the tightest win for a statewide office in Arizona history. Recount results opened in court on Thursday confirmed Mayes won by just 280 votes. She had been ahead by 511 votes out of about 2.5 million cast before a few hundred uncounted ballots were located during the recount.

Two Republicans also won statewide office and begin their terms Monday: Treasurer Kimberly Yee won a second term and Tom Horne defeated incumbent Kathy Hoffman and will become the state’s top K-12 school official as superintendent of public instruction.

While the number of guests expected for Thursday’s official inauguration hasn’t been released, it will be large. The state Department of Administration sent a memo to state workers warning of road closures, heavy traffic and tight parking availability, since many state lots will be cordoned off for those attending Hobbs’ inauguration.

To make room, state employees assigned to buildings in the Capitol complex are being “strongly encouraged” to avoid the office on Thursday and to instead work remotely.

Hobbs offers ‘open door’ for GOP lawmakers, but …

Arizona Democratic Gov. Katie Hobbs speaks after taking a ceremonial oath of office during a public inauguration at the state Capitol in Phoenix, Thursday, Jan. 5, 2023. (AP Photo/Ross D. Franklin)

At a public inauguration ceremony on Jan. 5, Gov. Katie Hobbs repeated the message she’s emphasized since winning election almost two months ago: she’s ready to work across the aisle with Republican lawmakers, within reason.

“Let me say unequivocally, to every elected official here today, that if you’re ready to make real progress on the issues that matter most to the people of this state, then my door will always be open,” Hobbs said.

“Let me also say just as clearly,” she continued, “that chasing conspiracy theories, pushing agendas for special interests, attacking the rights of your fellow Arizonans, or seeking to further undermine our democracy will lead nowhere.”

Hobbs is the state’s first Democratic governor since former Gov. Janet Napolitano left office in 2009, and she’ll have to work with a Legislature that’s ruled by slim Republican majorities in both houses. After running as a moderate, Hobbs repeated her promise to work across the aisle and include Republicans on her team.

“We must work together to make real progress,” she said. “That’s why you’ll see my administration bring people together from all parts of the state and from across the political spectrum – Democrats, Republicans and independents – with different points of view, to work side by side.”

She’s started to do that – her transition team was co-chaired by a Democrat and a Republican, and in a few key state agencies she’s keeping leaders appointed by her predecessor, former Republican Gov. Doug Ducey. Mesa Mayor John Giles, a Republican supporter of Hobbs, also delivered a speech on Jan. 5.

The ceremony was held in the Capitol courtyard between the Arizona Senate and Arizona House of Representatives and drew hundreds of attendees. Those on hand included former Govs. Ducey, Jan Brewer and Fyfe Symington; U.S. Sen. Kyrsten Sinema; and Sonora, Mexico Gov. Alfonso Durazo.

In addition to Hobbs, four other Arizona officials took the oath of office on Jan. 5: Democratic Secretary of State Adrian Fontes, Democratic Attorney General Kris Mayes, Republican Treasurer Kim Yee and Republican Superintendent of Public Instruction Tom Horne. Robert Brutinel, chief justice of the Arizona Supreme Court, administered the oath of office to Fontes, Mayes, Yee and Horne.

For Hobbs, the oath was administered by Roopali Desai, a lawyer who represented her on many political and election cases while Hobbs was secretary of state. Desai was appointed to be a federal judge last year.

A handful of protesters, kept far from the inaugural ceremonies, protest Jan. 5, 2023, against Gov. Katie Hobbs. (Capitol Media Services photo by Howard Fischer)

The event was purely ceremonial, however. The five officials sworn in on Jan. 5, plus Republican Mine Inspector Paul Marsh, also took the oath of office on Jan. 2 at a private event in the Executive Tower. The public event was set for Jan. 5 to avoid falling on a holiday.

Hobbs’ 14-minute speech was aspirational and touched on the big promises she made during the gubernatorial campaign, but it didn’t lay out exactly how that will translate to lawmaking or executive action even as it came days before the start of the 2023 legislative session.

“We must find common ground and do what’s right,” she said. “To invest in public schools and finally provide the support our students, teachers and parents deserve; to create good-paying jobs at lower cost; to defend reproductive freedom and women’s rights; to ensure public safety in all communities; to ensure access to safe, affordable housing; to enable small businesses and entrepreneurs to thrive; to hold Washington accountable for our broken immigration system and its devastating impact on families and communities; to safeguard our elections; to protect our forests and public lands; to secure Arizona’s water future.”

Sticking to broad themes might be a nod to the fact that Hobbs, unlike Ducey, won’t have the luxury of dictating a policy agenda and working with members of her own party to push it through the Legislature. Or it might just mean she’s saving more explicit policy plans for her next major speech on Jan. 9, which will mark the start of the legislative term.

In an interview the day before the inauguration, Hobbs said her top three priorities for the 2023 legislative session are bolstering public education funding, addressing housing issues like affordability, and getting a state budget passed.

On Jan. 5, the courtyard was blanketed in white chairs for the attendees, with more seating on metal bleachers in the back. A miniature Arizona flag was laid on each seat. A drone – apparently a security measure – was tethered over the Senate building and then hovered over the crowd throughout the ceremony.

One issue hanging over the event was the fact that Hobbs hasn’t revealed exactly how it was funded. Her team has published a list of sponsors – which includes major corporations whose work is impacted by state law like Arizona Public Service and Banner Health – but hasn’t listed how much each sponsor donated to the inaugural day activities.

In spite of the talk about political cooperation and bipartisanship, some parts of Hobbs’ “unity” message could also be read as partisan talking points and could preview an ongoing political strategy for the Democrat who won office largely by casting her Republican opponent as out-of-touch and extreme.

“Now is the perfect time to move past division and partisanship and return to a path of cooperation and progress,” she said at one point. At another moment, speaking about voters’ choices in the November 2022 election, she said Arizona voters “rejected those who seek to divide, to pit Arizonan against Arizonan, community against community.”

That was a thinly veiled reference to Republican gubernatorial candidate Kari Lake, who emulated former President Donald Trump’s political style and openly embraced his debunked claims about widespread fraud in Arizona’s elections. Lake did have prominent Republican detractors, but several GOP legislators supported her campaign.

Outside of the inaugural ceremony, beyond tall metal security fencing, a small group of Lake supporters gathered, carrying flags and yelling intermittently, their voices just barely audible as Hobbs and other officials laid out their plans for the state.

Hobbs’ leftover inauguration funds can be used on elections

People attend the public ceremonial inauguration of Arizona Democratice Gov. Katie Hobbs at the state Capitol in Phoenix, Thursday, Jan. 5, 2023. (AP Photo/Ross D. Franklin)

Gov. Katie Hobbs collected nearly $1.5 million in donations from corporations and other special interests to cover the cost of her inauguration.

But the event cost only about $207,000 to put on.

And that’s going to leave her with a bunch of money she can spend on everything from gifts to visiting dignitaries to trying to flip control of the Arizona Legislature to Democrats in 2024.

The report, obtained by Capitol Media Services, also shows that Arizona Public Service, the state’s largest electric utility, was the largest donor at $250,000.

APS had previously confirmed that it had given money but refused to say how much the company was providing. Instead, company spokesman Mike Philipsen would say only that the company was “joining Arizona businesses to support the governor’s inauguration.”

He also said that the donation is “directed specifically to the 2023 gubernatorial inauguration committee, meaning it can be used in support of all inauguration functions.”

But the APS contribution itself exceeds what the event cost, with what to do with the balance now up to Hobbs because she set up the inaugural fund under a section of the Internal Revenue Code that allows proceeds to be used for political purposes.

If she spends the APS money – and the surplus from the other donors – to help get Democrats elected in 2024, that would prove to be a bit of irony.

The company gave more than $850,000 to the Republican Governors Association this election cycle. And that organization in turn provided more than $9 million to the Yuma County Republican Central Committee which used the cash to run commercials seeking to defeat Hobbs.

APS would not comment on whether the donation to the inaugural fund – the largest by a factor of 2.5 over any other – was a way of mending political fences with the new Democratic governor as the company’s investment in the RGA is disclosed in public reports.

By contrast, Salt River Project donated $25,000 for the inaugural. And Hobbs got just $10,000 from Tucson Electric Power.

There was no response from APS to multiple messages to APS seeking comment on having at least some of its money left over that Hobbs can spend for political purposes.

While APS was the largest donor, there were others in the six-figure range.

That includes Blue Cross Blue Shield which not only offers health insurance plans to state employees but also lobbies on insurance legislation at the state Capitol.

Also at the $100,000 level is the Realtors Issue Mobilization Committee. It provides grants to local Realtor associations to advocate on public policy issues. Its funding was cited by the Arizona Association of Realtors in the successful 2016 campaign to add a measure to the state constitution to forever prohibit the taxing of services – like real estate services.

And Sunshine Residential Homes, which provides care to children removed from their homes by the state Department of Child Safety, also kicked in $100,000.

There also was a $50,000 donation from William Perry, owner of William K. Perry Farms which grows cotton and alfalfa.

Arizona Democratic Gov. Katie Hobbs takes the ceremonial oath of office during a public inauguration at the state Capitol in Phoenix, Thursday, Jan. 5, 2023. (AP Photo/Ross D. Franklin)

The Union Pacific Corporation Fund for Effective Government kicked in $26,450, with $25,000 donations from the Tohono O’odham Nation, Southwest Mountain States Regional Council of Carpenters, homebuilder Taylor Morrison, the Arizona Dispensary Association that represents marijuana shops, the Health System Alliance of Arizona, which lobbies on behalf of major hospitals, Honeywell International PAC and several individuals.

And there are a series of $10,000 and $5,000 donations, a few smaller – and one at $25.

The amounts donated are far in excess of what anyone could have given Hobbs – or any other candidate for statewide office.

For the election just completed, Arizona law limited individual donations for statewide candidates to $5,300. Even political parties could give no more than $80,300 to a party’s nominee.

And corporate donations to candidates – the kind that went to fund the inaugural – are entirely prohibited.

It wasn’t just Hobbs collecting money for the inaugural.

It turns out there was a separate State Inaugural Fund which has received donations and pledges of about $85,000, the largest of which was $25,000 from food giant conglomerate Pepsico. Hobbs press aide Murphy Hebert said those dollars will be used to pay for event-production expenses.

Hobbs has been under pressure to release information on the sources of funds for the inaugural event since Capitol Media Services first wrote at the beginning of the month that she was not fully disclosing the names of all the individuals or corporations paying for the celebration.

She subsequently put a full list of the names in a booklet that was given out at the Jan. 5 event and listed them on an inaugural web site. But this is the first time there is a full accounting of how much each has donated.

“With the inauguration events now behind us, we are fulfilling the governor’s commitment to transparency by disclosing the donations made to the Inaugural Fund as well as expenditures from the fund that helped cover the costs of the Jan. 5 inauguration ceremony,” Nicole DeMont, director of the inaugural committee said in a prepared statement.

Part of what makes the excess cash noteworthy, aside from the amount raised, is that what Hobbs gets to do with inaugural money differs from her three prior predecessors.

Republican Doug Ducey raised outside money, including at his second inaugural in 2019 where he sold tickets for the best seats to the event. For example, a $25,000 donation got six seats up front, three parking passes, six reception tickets, three photos and six inaugural pins.

But what was left over after paying costs was placed into the “protocol fund” that governors can use for things like gifts to dignitaries. And Arizona law requires governors to annually account for how those monies were spent.

In 2011 when Jan Brewer was sworn in, she raised $200,000 from lobbying firms, business interests and the state’s major utilities. When the event didn’t cost that much, leftover funds were earmarked to refurbish the governor’s offices, particularly to pay for new carpeting.

And Janet Napolitano’s 2007 inauguration raised only 150,000 from private sources to supplement the $60,000 budgeted in state funds, with no indication of anything left over.

By contrast, Hobbs set up her inaugural committee as a “social welfare organization,” a category under the Internal Revenue Code for nonprofits that allows at least a portion of the funds to be used for political purposes. That 501(c)(4) category is the same, for example, as the Free Enterprise Club which has used its status to promote candidates of its choice through independent expenditures for things like commercials.

And that enables Hobbs to use at least part of what’s left over after paying expenses to run the same kind of independent expenditure campaigns in 2024 to get a legislature more to her liking.

Arizonans got to see in 2020 what a governor with available cash can do.

That year Ducey was in control of Arizonans for Strong Leadership.

There are some differences. Ducey raised his cash not from his inaugural but from private donations.

But he did use his available dollars to push for election of GOP lawmakers in the 2020 election.

Most notably, the governor directed the spending of more than $170,000 to back Wendy Rogers in the general election for the state Senate and another $290,000 in independent expenditures against Felicia French, her foe. Rogers won.

Ducey was asked about those expenses after Rogers, once elected, was mired in controversies including her association with white nationalist groups. She even was censured by the Senate for “publicly issuing and promoting social media and video messaging encouraging violence against and punishment of American citizens,” with the resolution citing a speech she made to a white supremacist group.

But Ducey was unapologetic. He said his decision to back Rogers ensured Republicans would hang on to control of the Senate with their 16-14 margin, enabling him to advance his political agenda.

There was no disclosure of who attended Hobbs’ $150-a-head inaugural ball on the Saturday after she was sworn in. A spokesman said that had nothing to do with the inaugural committee, with the funds raised going to the Arizona Democratic Party.

In their words: Russell Pearce

In this Feb. 10, 2011 file photo, protesters gather around former state senator Russell Pearce, author of SB 1070. The ACLU acquired thousands of Pearce e-mails through a public records request and says they prove the controversial anti-immigration law was racially motivated. (Matt York/Associated Press) — In this Feb. 10, 2011 file photo, protesters gather around former state senator Russell Pearce, author of SB1070. (Matt York/Associated Press)

There are the historians and there are the history makers. Who you gonna’ believe? The Arizona Memory Project, supported by the Arizona State Library has a collection of oral histories of former legislators who were there when history was made, whether it was the bribery scandal known as AZSCAM, the creation of a new agency, or in former Senate President Russell Pearce’s case, the passage of SB1070. Pearce was the architect of the bill that was meant to allow local governments to deal with immigration issues. The 2010 bill became a national flash point for immigration policy and drew the ire of President Obama and led to the rise of Gov. Jan Brewer’s star. Pearce, for his part, was recalled and his political career ended in 2011. In his 2015 oral history interview, Pearce talks about the bill and other topics.

On his legacy:

I don’t know how you repair all that, I don’t buy my ink by the barrel. But again, even the Tea Party, everybody that knows me – the Tea Party, they still invite me to speak to them all the time. Next to Sheriff Joe (Arpaio) I get the largest applause at our state convention for Republicans, statewide. I was elected after that as the first vice chair of the state party. I get the loudest applause at our Maricopa County Republican mandatory meeting every January. I’m grateful. They know me and they treat me respectfully, and I’m grateful for that and they don’t owe me anything, they don’t have to do that. I get standing ovations when I go to speak to certain groups because I talk about things that need to be talked about – the truth. I think I have other than those that want to believe bad and those that continue to lie about my character, they aren’t going to change, they have an agenda. They don’t like me, I don’t care, I don’t care what I do, but those who know me know better. I’m grateful for the reputation I have among the good guys and the patriots.

On being a Republican:

My dad was a Democrat. We prayed for him often. My mom was a Republican. All of us children are Republicans. The Republican Party had the values that I embraced. There’s a lot of Republicans that disappoint me. They don’t conduct their lives, I think, in a manner that represents the conservative values the Republican Party stands for, but it was the best party for the principles I believed in and the party I felt offered the most hope to save this republic and to bring it back into the proper role.

On political philosophy:

As a very young man I remember strong feelings about patriotism and this Constitution. I can tell you the very first fight I had I think I was six years old and it was with a neighbor and the fight was over Eisenhower and Stevenson. I’m sure I was too young to understand what Eisenhower was about but my mom supported Eisenhower, so he was the right guy so we got into a little – six year olds don’t hurt each pretty bad – but we got into a fistfight over that. I had strong political views at a very young age and they haven’t changed over time, I’ve been pretty consistent. I’ve studied with Cleon Skousen about the Constitution, the Founders, I’ve read the books, I read the Constitution regularly, I carry a Constitution with me wherever I go. I always have one on me and I read it, it’s not just for show.

On campaigning:

When you are the candidate, everything changes. It’s easier to talk about somebody else than it is yourself. It became a challenge going door to door, which I had already done as a JP, too, but I loved that, I really enjoyed that. The chance to visit with people at their doorstep, hear their concerns, their frustration, their lack of trust, sometimes in government and those who are in positions of trust. It was very touching and at the same time kind of, it allowed you to recognize the importance of what you are doing in terms of keeping those promises. After that election, every campaign I ran, one of the first things I put out were promises made, promises kept. I’ve never not done what I promised to do.

So many of those folks, hundreds of doors that I would go to, they would tell me I’m the first guy running for office that ever been to their door, and you can’t get to every single door, but I covered hundreds of them, and so I liked that. Those that had questions, I even enjoyed more. Those that would engage in actual dialogue was very good. I’m kind of a visitor, I enjoy visiting so my wife would tease me. She would drop me off on a corner and I’d say, “Okay, meet me back here in about an hour.” She said, “Russell, I’ll meet you back here in three hours.” We would laugh because I take a long time.

On the trespassing section in SB1070:

My purpose was not to change the law, but to enforce the law. I didn’t write anything into 1070 that wasn’t already in law. What was really frustrating, even the part the judge struck down in part of sections three and five and six it was already the law. Section five simply said under law it’s a misdemeanor if you don’t have your paperwork on you. If you’re in the country legally, it’s a misdemeanor, it’s illegal. So we made that a state crime. Out of fairness, it needs to be said how that section came into play. I wrote it expecting a Supreme Court decision, a battle, I wrote it to win. I wrote everything based on codified federal law. The section on the trespass came to mind when I first ran it – I can’t remember if it was ‘06, ‘07 when I first ran the trespass provision. In talking to (Cochise County) Sheriff (Larry) Dever, he said, “Russell, I don’t have an illegal alien problem.” I said, “What do you mean you don’t have an illegal alien problem?” He says, “Border Patrol is so effective down here they’re just passing through. You have a problem.” He said, “They may steal a car on their way through or on their way back steal a car,” but he said, “I don’t have the problems you have in Phoenix and Tucson.” He said, “What I need is the ability to hang onto them.” He said, “If Border Patrol takes – they’re very effective down here – I don’t get them back. And if they’re a suspect in a crime or an investigative lead, I’d like to hold them long enough to complete my investigation.” He said, “I’m not looking to keep them, that’s costly. I just want to keep those I need to keep.” I said, “Good idea, I’ll add a trespass provision on the bill that allows you to keep them on a state crime. You can charge them or not charge them, but if you need to charge them for trespass, then charge them if you need to hang onto them for a few days so you don’t have to turn them over to border patrol. That’s how that came about on the trespass idea. But anyway, I mean yeah, 1070 got a life of its own.

Editor’s note: This interview has been edited for space. Arizona Memory Project interviews will appear on this page each month.

John Arnold: Counting on college attainment to boost economy

John Arnold PHOTO BY PAULINA PINEDA/ARIZONA CAPITOL TIMES

John Arnold, the newly appointed executive director of the Arizona Board of Regents, has an affinity for numbers.

Originally from Salt Lake City, Arnold received a bachelor’s degree in accounting and a master’s in accounting and public administration from Brigham Young University. His experience there landed him a job right out of college in Gov. Fife Symington’s budget office.

Arnold, who took over as head of the board July 26 after former Executive Director Eileen Klein stepped down in March, previously served as ABOR’s vice president of business management and financial affairs for three years. Before that, he was director of the School Facilities Board and as the state budget director under Gov. Jan Brewer for six years.

Now he hopes his experience with finances will help him in his new role as he works with the regents and university presidents to continue growing enrollment at the state’s three public universities and ensure that higher education is properly funded.

Prior to working in the state budget office, had you considered working in government?

My original track was accounting and I worked as an intern with Ernst & Young. I did a tax season with Ernst & Young and I started thinking about doing something else after that experience. BYU has a really high-end public administration program and I saw some of the materials for that. I went and spoke to the director of the program and we created a pathway for me to finish my work in accounting and do some work in public administration. And I’m really, really glad I did. It’s a terrific career.

How did that first job opportunity in the budget office set you up for the rest of your career?

The neat thing about the budget office is you’re exposed to the different types of state government, the different topics state government tackles, such as health care, public safety, education, higher education. And so I was involved both in some infrastructure issues and then education issues and really fell in love with the education side. My wife’s a teacher and working on the finance side of education while she worked on the teaching side was really fun. While I was in the Governor’s Office, a new agency was created, the School Facilities Board, and I was assigned to help develop that agency. And so the new director at that agency asked me to come up and be their finance director. And that led to me being the director of that agency and ultimately coming back as the state budget director.

How did you land at ABOR?

I worked as the state budget director under Governor Brewer for the six years prior to my coming over here and with the change in governorships I was looking to move on. Working in a Governor’s Office is a high intensity experience and my family was ready to try something new. A position opened up at the board for the chief financial officer. I was familiar with the board and leadership. President Klein had been the chief of staff in the Governor’s Office and I’d worked with her a couple of times over the years. And so there was just a very appealing position and I applied and, once again, was fortunate to get it.

What do you hope to accomplish in this new role?

I think two of the key problems facing public higher education really relate to educational attainment. One piece of that is driven by the college going rate, how many kids are coming out of high school and going on to higher education, and Arizona kids go at a much lower rate than our national average. That’s one area I would really like to focus on. How do we change the culture in Arizona so we have more of our students that pursue additional education opportunities after high school and not just in our public universities? There’s all kinds of opportunities for additional education, but there is study after study that shows we need to improve our attainment or our economy as a state is going to underperform. The second piece I I really want to work on is taking that ethos of higher education and translating that into more public support for our universities, specifically, in terms of appropriations from the Legislature.

Do you think your financial background will help you accomplish that?

I have a deep understanding of state finances and how the state works and the different competing priorities. After three-and-a-half years over here, I have a much better understanding of the financial structures of the universities and really the support they need from the state in order to be successful long-term, especially in order to expand the attainment opportunities for Arizona residents. So I’m hopeful to take that knowledge base and help raise the profile and the importance of what we do.

The universities have been fighting for increased funding over the last couple of years. How do you plan to address that?

One of my first projects when I came over here was to help redefine the relationship, the financial relationship, between the state and the universities. During the recession, that financial relationship was upended and there was no clear financial relationship between the universities and the state, what really is the state’s responsibility toward our public universities. And so we presented that in terms of resident students, you know, providing access to a high quality public university for our resident students. We know what it takes to provide that access. We know how many students need to keep coming to the universities to reach our attainment goals in the state. And so I think in those terms, we can present that case to the state and help make it a priority and get the funding that we really need to be successful.

What do you believe is the Legislature’s role when it comes to ABOR?

They are tasked with ensuring we have the right governance structure, and we have a lot of opinions on that for sure. But that’s their responsibility to set that up under the constitutional mandates. Our public universities have changed significantly over the last 50 years – they’ve modernized, and I think a legitimate question that the Legislature should look at is if the governance structure we have currently is the correct one for our modern university system. We run a very, very efficient governance structure, one of the most efficient ones in the country. Would it be appropriate to have more governance than what we already have? Would it be appropriate to have less?

Judge hits state with $2m in legal fees for ‘dreamers’ license suit

The unsuccessful bid by Gov. Jan Brewer and the state to keep “dreamers” from getting licenses to drive is going to cost Arizona nearly $2 million.

In an order Monday, U.S. District Court Judge David Campbell said the challengers to the former governor’s executive order are entitled to almost $1.9 million in legal fees. And Campbell agreed they are owed more than $81,000 in other costs.

That’s on top of whatever the state had to pay its own outside attorneys in the losing legal effort, a number that the Attorney General’s Office said was not immediately available.

“That’s outrageous,” Brewer told Capitol Media Services when informed of Campbell’s order. And the now-former governor said she still believes her directive to deny licenses to dreamers based on her reading of state law was legal, no matter what the courts ruled.

“I believe in the judicial system,” she said. ” But I think that our interpretation was correct.”

But paying this tab isn’t going to end the amount of taxpayer money being spent over the fight on who is entitled to legally drive in the state.

Gov. Doug Ducey is currently engaged in a separate and protracted legal battle to deny state-issued licenses to other “deferred action” recipients who were not part of the first lawsuit.

There is no current tally of what that fight is costing taxpayers. But as of a year ago the state Department of Transportation said it already had paid out almost $210,000 to lawyers representing the governor in that legal fight.

And if Ducey loses, taxpayers again will be on the hook for the legal fees of challengers.

Campbell’s order finally ends the first legal fight that goes back to 2012.

That’s when the Obama administration created the Deferred Action for Childhood Arrivals program. It says that those who arrived in this country illegally as children could stay without fear of deportation and even legally work if they met certain other conditions. At last count there were about 31,000 DACA recipients in Arizona.

Brewer, in an executive order, directed the Arizona Department of Transportation to deny licenses to DACA recipients, saying they are not qualified under a 1996 state law that says licenses are available only to those whose presence is “authorized by federal law.” She specifically argued that the U.S. Department of Homeland Security has no legal authority to permit DACA recipients to remain and work.

That argument failed to convince federal judges who said Arizona cannot decide for itself who is legally entitled to be in the country. In fact, appellate Judge Harry Pregerson wrote that Brewer’s order was motivated by “a dogged animus” against DACA recipients.

Even after Brewer left office at the end of 2014, the state kept fighting the lawsuit all the way to the U.S. Supreme Court, which issued a final ruling earlier this year. That paved the way for Campbell to award legal fees to the challengers, including the Mexican American Legal Defense and Educational Fund, the National Immigration Law Center and the American Civil Liberties Union.

What’s now left is Ducey’s own legal fight with deferred-action recipients which in some ways is a spinoff of the original — and now lost — legal battle.

In contesting Brewer’s order, one of the arguments made by challengers is that the state was not being fair because it had been providing licenses for years to those in other deferred-action programs. These included domestic violence victims, those with pending visa applications, and those allowed to stay for humanitarian reasons.

So in its bid to buttress the decision to deny licenses to dreamers, the state stopped issuing licenses to those in the other covered groups. And since they were not included in the original laws — they had been getting licenses until being cut off — they were not covered by the separate ruling on behalf of dreamers.

That resulted in a new lawsuit by those affected, this one specifically against Ducey. And he hired his own attorneys — at state expense — to argue that these other deferred-action recipients are not entitled to a state license to drive.

Ducey has defended maintaining the lawsuit, even in the face of the U.S. Supreme Court ruling against Arizona in the earlier case. But the governor has so far had no better luck than his predecessor in convincing the courts to deny the bid by these other deferred-action recipients for the right to drive legally.

Campbell, who is hearing that case, too, said there is evidence that the individuals who sued are being denied the same driving privileges that ADOT grants to others who have similar legal status. And he rejected claims by Douglas Northup, the attorney Ducey hired at state expense, that these people actually can get a license if they produce certain other evidence.

Ducey now is seeking review by the 9th Circuit Court of Appeals.

Judge sides with campaign to nix tax cut

Arizona voters have the legal right to review — and override — the $1.9 billion tax cut plan that mainly benefits the wealthy approved earlier this year by the Republican-controlled legislature, a judge ruled Wednesday.

In a 12-page ruling, Maricopa County Superior Court Judge Katherine Cooper rejected arguments by the Arizona Free Enterprise Club that the constitutional right of voters to second-guess legislative decisions does not extend to matters involving funds.

The judge acknowledged that there is no right to refer tax hikes to the ballot. That is because such a petition drive would deny government the ability to operate.

But this case, Cooper said, is different.

She said the referendum, if successful, actually would leave the state with more revenue than it needs. So the outcome of the vote, Cooper noted, would not hamper government operations.

Wednesday’s ruling is unlikely to be the last word. Referendum foes are likely to appeal.

And even if they lose that legal fight, their attorneys are preparing a backup plan to quash the referendum with arguments that, despite a finding to the contrary by the secretary of state, there are not enough valid signatures on the petitions.

At the heart of the legal fight is the tax cut plan approved on a party-line vote and signed by Gov. Doug Ducey.

Under current law, anyone with taxable income up to $26,500 a year pays a tax rate of 2.59%, with those figures doubled for married couples filing jointly. That rate increases in steps, to the point where taxable earnings on individuals above $159,000 are taxed at 4.5%

SB1828 would impose a single 2.5% tax rate on all incomes beginning in 2025. Legislative budget staffers peg the revenue loss at $1.9 billion a year.

Ducey has repeatedly sought to portray the measure as providing a tax cut of about $300 a year for the “average Arizonan.”

But an analysis of the package by legislative budget staffers put the savings for someone making between $25,000 and $30,000 a year at $11. That increases to $96 for those in the $50,000 to $75,000 taxable income range.

Bigger benefits kick in at higher income levels.

Taxpayers with income of between $250,000 and $500,000 would see an average $3,071 reduction in what they owe each year according to the staff analysis. That increases to more than $7,300 annually for those earning from $500,000 to $1 million.

Foes gathered more than the 118,823 valid signatures needed to hold up enactment until voters get the last word. That led to the bid by the Free Enterprise Club to quash a vote as illegal.

Cooper disagreed, saying the framers of the Arizona Constitution said voters have “broad authority” to prevent adoption of any laws.

“Referendum is a check on the legislative process to ensure that legislators do not simply serve the particular interests of a few people,” she wrote. “If a majority vote in favor of a referendum, then the matter referred is nullified and can only become a law if approved by the voters.”

Cooper did agree with the Free Enterprise Club that there is that exception for what are “appropriation bills.” She said these are measures that set aside public funds for a specific government purpose.

But she said that is not what is in SB1828.

“It adjusts Arizona’s income tax rates, lowering them over time to a ‘flat tax,” the judge said.

“It does not set aside any tax revenue of a certain sum for any specified purpose nor does it dictate how agencies use that revenue,” Cooper continued. “SB1828 does not fall under the well-recognized definition of ‘appropriation.’ ”

In his backup plan, Attorney Kory Langhofer, who represents the foes of the tax cut, already has prepared a litany of what he contends are legal flaws with the petitions, flaws that could reduce the number of valid signatures.

Among the allegations is that some paid circulators had not registered with the secretary of state as required or that they collected signatures before registering. These also are claims that some of the registration forms are missing required information like providing a full address.

Any of those would disqualify all the signatures those circulators collected, possibly leaving the petition drive short of the 118,823 valid signatures necessary to force a public vote.

Other claims include issues of handwriting irregularities and missing dates or addresses of those who have signed the petitions.

Judge takes flak for decision against school tax measure

Backers of a measure to tax the rich for public education called Judge Christopher Coury’s decision to strike it from the ballot “politically motivated” and are calling for his removal in November’s retention election.

Arizona uses a merit selection process to appoint judges to four county superior courts and three appellate branches (two divisions of the Court of Appeals and the Supreme Court) and allow voters to retain them.

In 2018, there was an effort to oust Arizona Supreme Court Justice John Pelander and Justice Clint Bolick since they were the only justices on the ballot after voting in a 5-2 decision to toss out that year’s attempt at taxing the rich to fund public schools. Pelander and Bolick survived and Pelander retired in 2019.

Losing retention is rare, and has only happened once since 1978, when Benjamin Norris lost in 2014, but that won’t stop backers from trying.

Progressive lobbyist Geoff Esposito and Sen. Martin Quezada, D-Glendale were among those who tweeted about Coury being up for retention.

“Judge Coury and his #INVESTinED decision was the reason why the ‘NO’ option was created on the ballots for the retention of Superior Court judges. Vote accordingly this November,” Quezada wrote.

Norris, a judge in Maricopa County, was voted out largely in part due to his judicial performance review from his peers who said he was unfit to serve. Coury, on the other hand, received a perfect score from 33 of his peers.

Coury’s Invest in Ed decision, depending on what the Supreme Court ultimately decides, could be the biggest decision he made that will motivate Maricopa County voters to try to oust him.

Coury recently applied for a position on the Court of Appeals, but Gov. Doug Ducey chose Cynthia Bailey instead. Coury has been relentless in his career for court appointments, so it’s likely he will try again. It took him eight tries to land on the Superior Court after Gov. Janet Napolitano turned him down six times and Gov. Jan Brewer appointed him on his second attempt during her term.

He has served on the court since 2010 and has heard many cases, but recently he has come under fire in legal and education circles for his “political” decision that kicked Invest in Ed off the ballot, but it’s far from his first controversial decision of late.

In June, he sided with Gov. Doug Ducey and the Arizona Department of Health Services against media organizations in a lawsuit seeking information about the scope of outbreaks in nursing homes.

In July, Coury ruled in Ducey’s favor, blocking the eviction of tenants who weren’t paying rent during the pandemic, which is now up for appeal. He also settled a heated election challenge in 2018 over the petition of Mark Syms, husband of former lawmaker Maria Syms, who was trying to unseat Sen. Kate Brophy McGee in the Senate.

Former Arizona Attorney General Grant Woods, who supports Invest in Ed and wrote an amicus brief on its behalf, said he has known Coury and his family his “whole life,” but still believes he made the wrong call over the initiative ruling.

But Woods said he didn’t think the decision was politically-motivated, it was just wrong. He said Arizona’s founders didn’t set up the laws and the Constitution to say, “If you collect enough signatures the petition becomes a law,” instead that “if you collect enough signatures voters can decide on the ballot.”

“So the idea that you could stifle all of that because you didn’t feel that the 100 word summary at the top of the petition was adequate is to me nonsense,” Woods said.

Justice John Pelander retiring from Arizona Supreme Court

Arizona Supreme Court Justice John Pelander announced Tuesday that he plans to retire, giving Republican Gov. Doug Ducey the chance to appoint his fourth justice to the seven-member high court.

Pelander told the governor that he will retire on March 1. Voters retained him to the high court in November.

The longtime jurist was appointed to the court by former Gov. Jan Brewer in July 2009 after serving 14 years on the state Court of Appeals in Tucson. He had previously been in private practice, chiefly defending corporate clients in civil cases.

Pelander stepped down as vice-chief justice of the Supreme Court early last year, saying if he was elevated to chief justice as expected under the normal rotation he would reach retirement age before the five-year term expired.

Ducey signed legislation expanding the court from five to seven justices in 2016 and appointed two new members of the court, John Lopez and Andrew Gould. In 2016, he appointed Clint Bolick to the court to fill a vacancy.

The Republican governor will pick from a list of justices sent to him by an appellate court nominating commission under the state’s merit selection system for choosing many judges.

Pelander has long served on legal committees and organizations focused on improving the legal profession. In his resignation letter to the governor, he said he was grateful for the work, the Supreme Court’s members and staff and for the merit selection process.

“For some twenty-three years, Justice Pelander has been an exemplary judge – a model for his wisdom, collegiality, and commitment to fairly upholding the law,” Chief Justice Scott Bales said in a statement. “He will be greatly missed by his colleagues on our Court and others in the judiciary, and we wish him the best in his retirement.”

The seven-member Supreme Court oversees the state’s judicial system, hears automatic appeals of death sentences and considers civil and criminal appeals, with its decisions providing final interpretations of constitutional questions.

Lawmaker calls Supreme Court ruling ‘partial’ victory for LGBTQ

Rep. Daniel Hernandez explains legislation to extend the protection of anti-discrimination laws to include sexual orientation and gender identification. PHOTO BY HOWARD FISCHER/CAPITOL MEDIA SERVICES — Rep. Daniel Hernandez, D-Tucson. PHOTO BY HOWARD FISCHER/CAPITOL MEDIA SERVICES

A new ruling Monday by the U.S. Supreme Court on gay rights is imposing new restrictions on Arizona employers that neither the state legislature nor state courts were willing to do.

The 6-3 decision by the high court effectively puts a provision into federal law that says people who contend they were fired the opportunity to sue under Title VII of the 1964 Civil Rights Act which bars employers from discriminating based on sex.

“Homosexuality and transgender status are inextricably bound up with sex,” the justices said.

The move follows decades of unsuccessful efforts by some legislators to add sexual orientation and gender identification to existing laws that now prohibit discrimination in public accommodation and employment.

In effect, Monday’s court ruling catches the rest of the state up to cities like Tucson, Phoenix, Tempe and Flagstaff whose anti-discrimination laws already cover sexual orientation. But the high court decision covers only employment discrimination.

Rep. Daniel Hernandez, D-Tucson, chair of the Arizona LGBTQ Caucus, called the ruling a significant — but only partial — victory. He said nothing in Monday’s ruling provides blanket legal protections he believes are necessary for gays.

In this file photo from Friday, Nov. 30, 2018, the justices of the U.S. Supreme Court gather for a formal group portrait to include new Associate Justice, top row, far right, at the Supreme Court Building in Washington, Friday, Nov. 30, 2018. Justice Ginsburg, 85, is missing arguments for the first time in more than 25 years as she recuperates from cancer surgery last month but is recuperating and working from home. Seated from left: Associate Justice Stephen Breyer, Associate Justice Clarence Thomas, Chief Justice of the United States John G. Roberts, Associate Justice Ruth Bader Ginsburg and Associate Justice Samuel Alito Jr. Standing behind from left: Associate Justice Neil Gorsuch, Associate Justice Sonia Sotomayor, Associate Justice Elena Kagan and Associate Justice Brett M. Kavanaugh. (AP Photo/J. Scott Applewhite, file) — In this file photo from Friday, Nov. 30, 2018, the justices of the U.S. Supreme Court gather for a formal group portrait to include new Associate Justice, top row, far right, at the Supreme Court Building in Washington, Friday, Nov. 30, 2018. Seated from left: Associate Justice Stephen Breyer, Associate Justice Clarence Thomas, Chief Justice of the United States John G. Roberts, Associate Justice Ruth Bader Ginsburg and Associate Justice Samuel Alito Jr. Standing behind from left: Associate Justice Neil Gorsuch, Associate Justice Sonia Sotomayor, Associate Justice Elena Kagan and Associate Justice Brett M. Kavanaugh. (AP Photo/J. Scott Applewhite, file)

“In Arizona, you can still be discriminated against in stores, restaurants and hotels,” he said. “You can still be denied housing.”

Hernandez told Capitol Media Services that was brought home last year when the Arizona Supreme Court ruled that Phoenix could not enforce its anti-discrimination ordinance, which covers sexual orientation, against the owners of a calligraphy firm who refused to design wedding invitations for same-sex couples saying it conflicted with their Christian beliefs.

On one hand, Hernandez said, it was a narrow ruling, with the justices applying it to only the specific facts in that case.

“But it laid out, essentially, a toolkit for those businesses that want to discriminate,” he said. That’s why Hernandez said there needs to be a statewide law to overturn that ruling.

“If you are a business that has an open-door policy, you can’t decide who you close the door on just because you disagree with them,” he said.

Hernandez has had no luck. In fact, House Speaker Rusty Bowers earlier this year even refused to assign his anti-discrimination proposal to a committee for a hearing, telling Capitol Media Services at the time he saw no reason to overturn that state Supreme Court ruling.

“I think that my right of freedom of religion and religious beliefs and expression is at least equal to anybody else’s,” he said.

What might happen next year could depend in part on business community backing. But the head of the Arizona Chamber of Commerce and Industry, while declaring his support for what the Supreme Court did on Monday, refused to commit to backing such a law.

“We’re going to be very sympathetic when we look at different laws to make sure we don’t have discriminatory treatment in our society,” said Glenn Hamer, the organization’s president and CEO. “We will certainly review any proposal of that sort.”

And then there’s Gov. Doug Ducey. As recently as last year, the governor said he did not support extending state anti-discrimination laws to protect people based on sexual orientation.

Ducey declined to comment on Monday’s Supreme Court ruling, with press aide Patrick Ptak saying the governor is reviewing it with his staff. But Ptak said his boss “remains opposed to discrimination in all its forms.”

That lack of any specific protections in Arizona law is significant.

Doug Ducey (Photo by Dillon Rosenblatt/Arizona Capitol Times)

In a 1994 ruling, the state Court of Appeals, pointed out that state lawmakers have never extended legal protections to individuals based on sexual orientation. And based on that, the judges ruled that Arizona employers are free to fire workers solely because they are gay.

Since that time there have been no new cases on the issue. And attorney Richard Langerman, who represented Jeffrey Blain in that case, told Capitol Media Services that had his case been tried as recently as last month, before Monday’s Supreme Court ruling, the results would have been the same and his client — and all others — would have no legal recourse in Arizona.

Blain, an employee of Golden State Container Inc. of Phoenix, claimed he was fired because he is a gay man with AIDS.

Maricopa County Superior Court Judge Norman Hall instructed the jury that they should rule in Blain’s favor if they determine that he was fired because he has AIDS.
That is based on provisions of the Arizona Civil Rights Act, which prohibits discrimination based on disability. A state attorney general’s opinion concluded that AIDS fits within the definition of handicapped.
The judge, however, said jurors should ignore the question of whether Blain was fired because he is gay. Hall concluded that, under Arizona law, employers are entitled to do that.
The jury ruled in favor of the company. That sent the case to the Court of Appeals.
Langerman told the appellate judges the verdict might have been different if the jury had considered whether his client’s sexual preference also was a factor. Judge Joseph Livermore, writing the unanimous appellate opinion, disagreed.
The judges said Arizona employers do not need a reason to fire workers.
What companies cannot do, however, is fire someone for a bad reason, like violating constitutional protections based on race, religion or sex. Bad reasons also include violations of public policy, such as firing a worker who refused to break the law.
The judges said they could find nothing in Arizona law that makes a discharge based on sexual orientation a violation of public policy.

Livermore noted that lawmakers in most states, including Arizona, have not enacted laws barring discrimination based on sexual preferences, the way they have when dealing with sex, race, religion and age. The judge also pointed out that Congress specifically has rejected an outright ban on discrimination against gays in the armed forces.
The lack of statewide action on the issue has created a patchwork of statutes, with Tucson, Phoenix, Tempe, Flagstaff, Sedona and Winslow banning discrimination in private employment. Some other Arizona communities offer more limited protection.

In some ways, Arizona’s business community is out ahead of Ducey and state lawmakers.

Many major Arizona employers already have policies prohibiting discrimination based on sexual orientation. And some of them in 2014 went on record in urging then-Gov. Jan Brewer to veto legislation which would have expanded the right of businesses to claim they are entitled to deny service to anyone, including gays, based on the owner’s “sincerely held” religious beliefs.

Brewer ended up killing the measure.

More recently, several business groups aligned themselves with Phoenix in a battle over whether the owners of a calligraphy firm who cited their religious beliefs could be forced to design wedding invitations for same-sex nuptials. In that case the Arizona Supreme Court sided with the business.

Leadership styles, eras mark differences in outcomes of immigration measures

In this Aug. 26, 2014, photo, Gov. Jan Brewer, left, chides then State Treasurer Doug Ducey for beating her choice for governor in the GOP primary in 2014 gubernatorial race. (Associated Press) — In this Aug. 26, 2014, photo, Gov. Jan Brewer, left, ribs then State Treasurer Doug Ducey for beating her choice of candidate for governor in the GOP primary in the 2014 gubernatorial race. (Associated Press)

In one of the most enduring images of Gov. Jan Brewer, she stood on Jan. 26, 2012, on the Phoenix Sky Harbor runway and wagged her finger at President Obama as they discussed his challenge to SB1070, the immigration law she championed. Eight years later, when challenged, Ducey sat in the Executive Tower and sent his top aide to pull the plug on his similarly divisive immigration proposal and quell a growing uprising to it.

The differences in their leadership styles and the eras in which they have governed made for the divergent destinies of SB1070 and Ducey’s effort to put the state’s ban on sanctuary cities in the state Constitution.

In the face of unprecedented, mounting economic and social pressures, Brewer signed the legislation and provided the model for other states to enact hardline immigration policy, although SB1070 was the last legislation of its kind for Arizona until Ducey’s proposal.

SB1070, which aimed to control immigration locally, also galvanized an opposition movement that was ready to strike when Ducey said he wanted Arizona to vote to strengthen a key part of Brewer’s law. Ducey effectively ended the political storm that promised to match the intensity of the one that came with SB1070, which brought out throngs of protestors and a national spotlight.

Although Ducey made it clear his effort to push sanctuary city legislation is dead, he may be tested again if HB2598 continues to move through the Legislature. The bill, which has yet to be debated on the House floor or gone to a vote, requires cities to comply with immigration detainers and allows a victim of a crime perpetrated by a person who lives here illegally to sue a sanctuary city that doesn’t comply with the detainer.

Brewer said while her signing SB1070 overshadowed the rest of her governorship, she knew it was going to be controversial, but it was necessary to do and she would have done it again.

Demonstrators hold signs to protest SB1070 on April 23, 2010. (File photo)

“Once I make up my mind, I’m in for the fight, I’m in for the roll” Brewer said. “I think we did the right thing, it was handled appropriately and it made a difference in America, and out of it are results, I think, are yet to come.”

At the end of the day, it was about taking some kind of action in some direction and not continuing to stall on immigration.

Brewer said while she knows her place as a former governor, she still didn’t understand why Ducey was pushing his proposal. But regardless of his reasons, she said she wouldn’t have done the same thing as Ducey.

“Why would I? I already did it,” Brewer said. “Why create the chaos over again, when it’s already in law?”

Ducey Chief of Staff Daniel Scarpinato said lawmakers were unable to cobble together the votes to pass the proposal, which would have asked voters to determine whether the Arizona Constitution should prevent local jurisdictions from limiting their cooperation with federal immigration officials – effectively elevating a portion of SB1070, to the Constitution.

However, Scarpinato said that, had the governor continued to push for it, he would have got what he wanted: to put it on the ballot and see it passed overwhelmingly. But that would have distracted from the rest of the governor’s agenda – as Brewer allies said SB1070 distracted from her agenda – a chance the Governor’s Office wasn’t willing to take.

“Part of leadership is listening, and the governor listened and I think legislative leadership listened,” Scarpinato said.

Pioneer

In the decade since SB1070, activists who oppose hardline immigration measures are better organized, have earned more public support and refined their message. As the first and arguably most influential border state politician to take action, Brewer was a pioneer, in a sense, who led the legal fight against illegal immigration for states.

Being a pioneer isn’t easy, and Ducey likely learned from Brewer’s experience.

Veridus lobbyist Matt Benson, who became the communications director for Brewer months after she signed SB1070 into law, said the bill was “lightning in a bottle.”

“We didn’t know what that was going to become, nobody did. Nobody understood the way that was going to take off as the dominant election issue that was going to, in many ways, characterize her governorship,” Benson said.

The bill’s passage was bittersweet as it came on the heels of Proposition 100, a state sales tax increase dedicated mostly to education, that splintered Republicans so badly that some walked out of Brewer’s 2010 State of the State Address, Benson said.

SB1070 united Republicans, but immediately changed the state’s reputation nationally and with the Hispanic and business communities – perhaps giving a clear example of what Ducey should avoid, Benson said.

Benson said there are two immediate differences between 2010 and now.

The sanctuary city provision was “the least controversial aspect” of SB 1070 and activists and, in many cases, the media unfairly compared and overly conflated Ducey’s sanctuary city proposal with it.

Secondly, activists were quicker to establish and capitalize on a narrative this time around, Benson said.

“They said the language in this referendum was SB1070 at large. And yes, it was part of SB1070, but it was the least troublesome, the least politically toxic aspect of it,” Benson said. “That was the downfall of the referendum – it never got a chance to take hold with the larger Arizona electorate.”

The greater contexts surrounding the 2010 legislation and this year’s are near-polar opposites.

Longtime lobbyist and former Brewer political advisor Chuck Coughlin said the two pieces of legislation can’t be compared, because the immigration and economic environments are vastly different. Before SB1070, the border was not as secure as it is today, Coughlin said.

Obama wasn’t as supportive of hardline immigration policies as President Donald Trump is. In fact, SB 1070 fertilized the ground for expanding on strong state immigration measures in Arizona and across the country, Coughlin said.

However, after watching SB1070 play out, Ducey and his team “could have easily anticipated” that would happen again, Coughlin said.

Meanwhile, Ducey’s staff fully expected the measure to pass, but when reactions flooded in, they adjusted accordingly.

“They clearly calculated that it wasn’t worth the political risk at this time,” Benson said, adding that the Governor’s Office may have concluded that it was politically toxic for Republicans in an election year.

Brewer owned the label she earned after signing SB1070 into law and tried to move on, but it became her legacy and overshadowed anything else she did as governor, and she’s accepted that.

In this April 23, 2010, photo, Kate Dionne, 34. Phoenix, demonstrates at the Capitol. Dionne said she was happy Gov. Jan Brewer signed SB1070. (File Photo)

“My mother told me a long time ago, ‘doing the right thing almost always means doing the hard thing,” Brewer said. “I was raised that way, and I was a fighter, I was a scrapper and I did what I thought was right for the people of Arizona.”

Brewer said there were consequences that are still trickling, but, above all, border security has improved and that’s what she and her team wanted.

After the “great pain” Arizona experienced after the law passed, like a temporary boycott and a stained national reputation, Ducey worked hard to ensure relations improved, especially with the Arizona-Mexico Commission, Benson said.

Coughlin said people at an Arizona Hispanic Chamber of Commerce Black and White Ball were standing up and screaming at Brewer.

“I can’t imagine them doing that to Ducey today.”

The biggest regret of Brewer’s administration was that SB1070 overshadowed the other important, bipartisan work it did – perhaps something Ducey and his staff recognized and wanted to avoid, Coughlin said.

After Ducey’s withdrawal, which caught Rep. TJ Shope, R-Coolidge, his hand-picked sponsor, off-guard, Ducey’s closest aides didn’t want to ponder what it meant.

After killing what they called a “distraction,” they quickly attempted to pivot to talking about his long list of policy priorities – a handful of which are now struggling to earn support.

To them, this swift rescission was an example of “listening,” a key part of leadership. Anything else is speculation.

“I’m going to leave the kind of how all of this played out to the pundits and to you guys,” Scarpinato said. But one thing he didn’t leave to the pundits was how to interpret the measure’s failure.

“Anyone declaring victory — there is no victory for those who want sanctuary cities, sanctuary cities are not allowed,” Scarpinato said, adding that he saw their failure as a victory.

“We wanted to make the law stronger and more enshrined, but 95 to 98 percent of what we want, that’s pretty good. We can live with that,” he said.

McCain lies in state at Arizona Capitol

A casket carrying Sen. John McCain arrives at the Arizona Capitol on Aug. 29, 2018, where he is to lay in state. McCain would be 82 today. PHOTO BY KATIE CAMPBELL/ARIZONA CAPITOL TIMES

Americans think of two things when they think of Arizona: U.S. Sen. John McCain and the Grand Canyon, said Gov. Doug Ducey at a memorial service for the late senator Wednesday.

“Imagining Arizona without John McCain is like picturing Arizona without the Grand Canyon. It’s just not natural,” Ducey said.

McCain’s close friends, family and colleagues reminisced about Arizona’s senior senator and paid tribute to his life at a private memorial service in the rotunda of the old state Capitol building.

His body will lie in state Wednesday — an honor bestowed only to a great few Arizonans. It would have been his 82nd birthday.

McCain’s casket, draped in an American flag, sat atop the seal of Arizona. Later in the the day, the Capitol was open for the public to pay their respects.

McCain was more than a politician. He was a motivator to be better and do better, Ducey said. He was the only politician who, upon his death, could get Arizona and America to set aside politics and come together, he said.

“John McCain was about more than politics,” Ducey said. “He brought us above politics.”

Make no mistake, McCain took part in politics, plowing through elections with the energy and ferocity of a warrior. And he would fight like hell for the causes and issues he believed in, he said.

But McCain also called on everyone to look beyond their own self-interests. When he talked about “country first,” it was more than a campaign slogan or something to slap on a campaign sign, Ducey said.

McCain lived his life and political career by the idea of putting his country first, he said.

“We sometimes think that politics is life and death, but John McCain knew better because he had actually seen death and dying and tragedy,” Ducey said.

McCain’s love for America and its values stems from his more than five years as a prisoner of war during the Vietnam War. By learning about and understanding McCain’s time as a POW, the senator’s wisdom, values and life take on a much greater context, Ducey said.

Former Sen. Jon Kyl paid homage to McCain, saying the senator was an avid fighter for American values and a staunch defender of American national security.

McCain was a world traveler, said Kyl, who trekked across the world with the late senator. McCain knew more international leaders, more world history and had traveled to more countries than any other American official, he said.

He also knew when and where to assert American influence better than any other political leader, Kyl said.

“He represented our values all over the world as a senator from Arizona,” he said. “America is stronger for his fierce defense of our values.”

While he wasn’t born in Arizona — he moved here at age 45 — he quickly came to feel at home, and felt privileged to represent the Grand Canyon state. McCain is often referred to as Arizona’s favorite adopted son

Despite McCain’s death, his fight for America isn’t over yet, the burden has simply shifted, Ducey said. All Americans are obligated to continue the fight on his behalf, he said.

“As we march forward with the courage and resolve that he would have demanded, may we take comfort in knowing in that fight, John McCain will always have our back,” Ducey said.

Those in attendance at the memorial service included McCain’s wife, Cindy, and his sons Jack and Jim and his children from a previous marriage. His daughter, Meghan, sobbed at her father’s casket. Former Govs. Jan Brewer, Janet Napolitano and Fife Symington attended the service. Ducey was accompanied by his wife, Angela.

Legislative leaders J.D. Mesnard and Steve Yarborough were in attendance, as were Secretary of State Michele Reagan, Attorney General Mark Brnovich and Treasurer Eileen Klein.

U.S. Sen. Jeff Flake gave the benediction at the ceremony.

McCain died of glioblastoma — an aggressive form of brain cancer — Saturday at his family’s cabin near Sedona.

The private gathering Wednesday was the first in a series of events commemorating McCain’s life. A memorial service will be held at North Phoenix Baptist Church Thursday, before his body is flown out of state so he can lie in state at the U.S. Capitol in Washington, D.C. on Friday.

Medical marijuana patients claim state sets too high of price for permit

Calling the fees illegally high, an attorney for medical marijuana patients is asking the Court of Appeals to force state health officials to slash what they charge people to get the state-issued permit they need to buy the drug.

Sean Berberian said Monday that $150 that patients must pay annually is far more than the state Department of Health Services needs to administer the Arizona Medical Marijuana Act which allows people with certain medical conditions to use the drug. He said the 2010 voter-approved law makes it clear that the agency cannot simply bank the proceeds.

Berberian said this is more than an administrative bottleneck. He told Capitol Media Services that all the evidence suggests that both Gov. Doug Ducey and predecessor Jan Brewer both have directed the agency to keep the fees as high as possible to deter patients from getting the drug.

And the attorney also said this isn’t just an academic exercise. He said the fees are a significant hardship for the people he represents.

The new legal filing comes six months after Maricopa County Superior Court Judge Jo Lynn Gentry rejected similar arguments.

She did not dispute the allegations that the state is collecting far more than it needs. But Gentry said it’s not up to her to force the state to lower its costs.

Berberian said he hopes to prove to the Court of Appeals that her ruling is not legally sound.

What appears not to be in doubt are the numbers.

Figures obtained by Capitol Media Services show the health department collected $24.9 million in fees from patients, caregivers, dispensary owners and growers in the last fiscal year. The expenses in that same period were $11.2 million.

So far this budget year the data show revenues of $6 million against $2.8 million in expenses.

And as of Monday, health officials said the balance in the account is nearly $38.1 million, more than three times as much as needed to administer the program on an annual basis.

That, said Berberian, is illegal.

The 2010 law allows medical marijuana patients to purchase up to 2 1/2 ounces of the drug every two weeks from state-regulated dispensaries.

But sales can be made only to those with a state-issued medical marijuana ID card. And that card, which has to be renewed annually, costs $150.

Berberian said Lisa Becker, one of his clients, has suffered for years from a series of ailments. He said doctors gave her four different anti-nausea drugs and opiates to manage her pain.

What medical marijuana has done, he said, is calm her nausea, allowing her to eat solid food without vomiting. But he said that Becker, living on $1,100 a month, has had to either borrow money to pay the $150 annual fee or spend less on medications.

The other plaintiff is Yolanda Daniels who is caregiver for her granddaughter, Mercedes, who has epilepsy.

According to Berberian, the marijuana has reduced the child’s seizures. But to get the drug she has to pay $350 a year — $150 for her granddaughter’s card and another $200 to be a state-licensed caregiver.

The voter-approved law says the total amount of all fees “shall generate revenues sufficient to implement and administer this chapter,” meaning the Arizona Medical Marijuana Act.

“Instead, what the Department of Health Services has done is set a fee structure and refused to reexamine or revisit that fee structure when it’s quite obvious that the fees that they set are far beyond what is sufficient to implement and administer that chapter,” he said.

Berberian is not alone in reaching that conclusion.

Will Humble, who was health director when the 2010 measure was approved, told Capitol Media Services he set the $150 fee based on anticipated start-up costs and an assumption that only about 25,000 people would qualify.

As it turned out, that estimate was far too low. The latest report shows more than 143,000 people are currently certified by the state to use the drug.

Humble said he was working on a plan to slash the fee when he quit in early 2015 shortly after Ducey’s election.

There has been no apparent movement on the issue by Cara Christ, his successor, since. And state health officials did not respond to inquiries about the decision to leave the fees where they are even in the face of an increasing fund balance.

Berberian has his own theory.

“This is part and parcel of the state’s ongoing effort to try to limit Arizonans from getting access to legal medical marijuana,” he said. “At every turn, the state and our governor has tried to prevent Arizonans from getting access.”

“There have been no efforts from this office to direct ADHS’s operation of this program,” said gubernatorial press aide Patrick Ptak. He said the fees are simply what they were when Ducey took office in January 2015.

Brewer, who was governor when voters approved the law, did try to stop Humble from licensing any dispensaries at all — effectively making marijuana unavailable to patients — on the premise the state could not permit the sale of a drug that remains illegal under federal law. That argument was rejected by a state judge.

In the lower court ruling in this case, Gentry rejected Berberian’s contention that the requirement to set fees “sufficient” to administer the program precludes the state from charging more. She said there is nothing in the statute that specifically prohibits the health department from taking in more than needed.

More to the point, Gentry said what Berberian wants is for her to reset the fees at a more reasonable level. But the judge said that is a political question beyond the reach of the courts.

“The only way the court could determine what fee meets the sufficient requirements of the Arizona Medical Marijuana At and the Constitution would be to take over the administration of the Arizona Medical Marijuana Act from the Department of Health Services,” Gentry wrote. She said that would force the court to set policy decisions on things like staff salaries, operating expenses, enforcement actions and even litigation defense, all of which are things the 2010 law puts in the purview of the health department.

Our 2,000-word story on Ducey’s sanctuary city proposal is now moot. Sorry.

By the time our subscribers read our cover story for the Arizona Capitol Times Feb. 21 print edition, it is no longer relevant – and for that we’re sorry. When we put the weekly-published paper to bed on Thursday, Gov. Doug Ducey was facing mounting pressure to not push a measure to ban sanctuary cities to the ballot. The story documented how the proposal was a shift from Ducey’s tendency to not take a hardline position on immigration, how the racial tension was rising to a pitch not seen since 2010 when the Legislature passed and Gov. Jan Brewer signed SB1070, how tensions were rising among legislators, and how some view the proposal as a stain on the governor’s legacy and a black eye on the state. All that changed two hours after the story went to print. Ducey and legislative leaders decided to nix the whole proposal, making the story that occupied our cover and 2,000 words inside moot. If life were a movie, we would have yelled, “Stop the presses!” Stopping the presses is very expensive in real life.

This isn’t the first time I’ve experienced something like this. In 2000, I was among the staff of the East Valley Tribune. I did my part in covering the election, a local race I no longer remember. I got home from my shift and watched late into the night as Al Gore conceded and then changed his mind. I wondered aloud how our editors at the Tribune were going to handle it. I found out the next morning when I grabbed my copy from my front porch and the headline read: “Bush Wins!”

On a few occasions in my stint as Managing Editor of the Capitol Times, I’ve gone home on Thursdays – the day we put the print edition to bed – worried that a change in circumstances will render one of our stories irrelevant. That came true Thursday in a big way, and it was too late to stop the presses.

Sincerely,

Gary Grado

Managing Editor

Panel of women in public policy discusses sexual harassment at Capitol

Nadine Mathis Basha, board chair of First Things First, Sen. Kate Brophy McGee, former Gov. Jan Brewer, Lorna Romero, vice president of communications and advocacy for Molera Alvarez, and Jessica Pacheco, vice president of state and local affairs for Arizona Public Service Co., speak during a Women in Public Policy forum at Alexi's Grill on Nov. 7. (Photo by Paulina Pineda/Arizona Capitol Times) — Nadine Mathis Basha, board chair of First Things First, Sen. Kate Brophy McGee, former Gov. Jan Brewer, Lorna Romero, vice president of communications and advocacy for Molera Alvarez, and Jessica Pacheco, vice president of state and local affairs for Arizona Public Service Co., speak during a Women in Public Policy forum at Alexi’s Grill on Nov. 7. (Photo by Paulina Pineda/Arizona Capitol Times)

Generational divides were evident among a panel of women responding to questions about sexual harassment during a forum Tuesday.

After a mostly light-hearted discussion about their path to public service, moderator Jessica Pacheco, vice president of state and local affairs for Arizona Public Service Co., asked the four-member panel what women could do to combat sexual harassment amid reports from Rep. Michelle Ugenti-Rita, R-Scottsdale, that she was subjected to harassment since being elected to the Arizona House of Representatives in 2010.

Though the panelists denounced sexual harassment and agreed that it was encouraging to see so many women speak out against their aggressors, former Gov. Jan Brewer said that sexual harassment has been going on for years, but the issue has never been on the forefront as it is now.

“Bottom line is that when I was in the Senate, when I was majority whip, I had a sign in my office that said ‘Sexual harassment will be graded,’” Brewer said during the Arizona Capitol Times Women in Public Policy event at Alexi’s Grill in Phoenix. “I was making light of it, I guess, because I didn’t realize, really, the depth of it all. I always would tell people, I said ‘Make it good. Get a good grade.’ But the bottom line, there should be absolutely no tolerance.”

While she encouraged women to immediately report cases of sexual harassment, the Republican former governor also said it was “frightening” for men accused of harassment “because of course we know that people can accuse people unfairly and so there’s a very divided line there.” She also said women shouldn’t “put ourselves in compromising circumstances.”

In her response, Sen. Kate Brophy McGee, R-Phoenix, said it was important for women to set boundaries to prevent becoming a victim of sexual harassment.

Brophy McGee also argued that women could be aggressors, too, and said sexual harassment should be looked at “as a spectrum.”

“On one hand you have these awkward kind of like pinch and giggle ‘Oh my God that was terrible’ experiences that could lead you down a slippery slope, but at the other end it is pure domination, it is pure control, it is raw power exercised in the most brutal manner possible,” she said. “That’s what has to be stopped and that’s what needs, under whatever circumstance, you have to set those boundaries and you have to set them, if necessary, loudly and publicly.”

But Lorna Romero, vice president of communications and advocacy at Phoenix-based consulting firm Molera Alvarez, said it’s exactly that attitude that has led to a culture of sexual harassment in politics and at the corporate level. And it’s something that needs to change.

“I think fundamentally there needs to be a cultural change on a number of different levels,” she said. “Clearly if men think they can make certain comments toward women or make certain advances towards them, it shows a lack of respect that they think they can just do that.”

Nadine Mathis Basha, chair of the First Things First board, said that even something men believe is benign or well-intentioned can feel threatening to a woman.

She added that women needed a platform to speak out against sexual harassment and a process for their complaints to be heard.

“I do think what we’re hearing is the tip of the iceberg,” she said.

Passing $12.8B budget means appeasing several Republicans

GOP leaders in the House and Senate introduced a $12.8 billion spending plan Monday afternoon with high hopes of passing it by Wednesday — but finding the votes to pass it will prove difficult.

The spending plan, as laid out in twin sets of 11 bills Monday, is nearly identical to a deal that Gov. Doug Ducey and legislative leaders reached early last week, with extra money for roads, universities and technical education added to coax recalcitrant Republicans into voting for the plan. With only 16 Republicans in the Senate, 31 in the House and a $3 billion tax cut guaranteeing no support from Democrats, every single Republican must vote for the budget.

For now, the House and Senate appropriations committees plan to spend most of the day Tuesday hearing the budget bills, which include sweeping policy changes and revived language from controversial bills that failed to pass earlier in the year.

The Senate temporarily added Majority Leader Rick Gray to the appropriations committee, buying an additional vote on the committee, which has a 6-4 Republican majority, because Sen. Michelle Ugenti-Rita, R-Scottsdale, opposes the spending plan.

“Last week I was TOLD what the budget was going 2 look like. B/c I was true 2 my principles I told leadership as a fiscal conservative I couldn’t support it w/ this level of excessive spending. What message is Sen. Prez sending by appointing Sen. Gray to Approps to negate my vote?,” Ugenti-Rita tweeted Monday afternoon.

As Ugenti-Rita shows, the biggest hurdles Republican leaders face in passing a budget and going home for the year are inside their own caucuses.

On Friday, a group of 10 Republicans led by Rep. Jake Hoffman, R-Queen Creek, demanded massive spending cuts, including nixing millions of dollars for road repair, state parks and pay increases for state employees. Instead, the group demanded $7.5 million annually in new election-related spending, including $2 million for watermarked ballots and $2 million for forensic audits of future elections.

Sen. J.D. Mesnard, R-Chandler, said he is on the fence on the budget and agrees to an extent with some of Hoffman’s demands – but he also needed to see additional funding for career and technical education, which wasn’t included in the original deal but was added today, to the tune of $5 million annually.

“I, like some of my other colleagues, have concerns, and right now I’m reserving judgment,” he said.

House Appropriations Chairwoman Regina Cobb, R-Kingman, said she can’t see making the kind of spending cuts Hoffman and crew demanded. The current proposal is the project of negotiations between Ducey’s office and House and Senate leadership, and the demands would upend that.

“That’s going to start us from Day One again, and it’s probably going to cost us a lot more at the end of the day,” she said. “And that’ll probably defeat the purpose (of) what this is trying to accomplish.”

Sen. T.J. Shope, R-Coolidge, who supports the budget now that it contains $50 million to widen Interstate 10 between Casa Grande and Phoenix, said Hoffman’s demands threw everyone for a loop.

Those demands could end up resulting in a budget with more spending and smaller tax cuts if Republican leaders give up on the right flank of their caucus and start negotiating with Democrats instead.

“It always amazes me when the supposed conservatives say that they’re off something, when the alternative is to try to get Democrats on the budget,” he said.

Rep. Jake Hoffman, R-Queen Creek, is sworn in during the opening of the Arizona Legislature at the state Capitol Monday, Jan. 11, 2021, in Phoenix. Hoffman introduced a bill to prohibit the state or any subdivisions from accepting private money for elections after several counties and the Secretary of State received grants from an election nonprofit funded in part by Facebook founder Mark Zuckerberg to spend on statewide voter outreach. (AP Photo/Ross D. Franklin, Pool) — Rep. Jake Hoffman, R-Queen Creek, is sworn in during the opening of the Arizona Legislature at the state Capitol Monday, Jan. 11, 2021, in Phoenix. (AP Photo/Ross D. Franklin, Pool)

No Democrats plan to vote for the budget because of its massive tax cut package, which includes a transition to a single 2.5% tax rate by FY24 and a maximum tax rate of 4.5%, enabling wealthy Arizonans to avoid 3.5% surcharge for education that voters approved last year. The state now has four tax brackets, ranging from 2.59% for individuals with a taxable income of $26,500 or less and married couples with a taxable income of $53,000 or less to 4.5% for individuals making more than $159,000 and married couples making more than $318,000.

Under the spending plan, single people with a taxable income above $250,000 and married couples making more than $500,000 would pay 4.5% of their taxable income in taxes, but only 1% would go to the General Fund. The remaining 3.5% would be claimed by the education surcharge, in a plan that Globe Republican Rep. David Cook said was unacceptable.

“We’re taking everyone’s tax revenue to backfill taxes owed by one group, and I’m not sure how that is appropriate when we still have the needs of the state through the capital improvement list,” he said.

Cook also opposes the current budget’s increase in unemployment benefits, which are less generous than a plan he pushed earlier this year. Ducey, who vehemently opposed raising benefits, agreed to increase the weekly sum to $320 from $240 by July 2022, but only if the state met certain triggers.

Efforts to court fellow holdout Paul Boyer, R-Glendale, were in full swing, as Senate Republicans added millions in additional funding for Arizona State University and Northern Arizona University and scheduled a surprise hearing for a last-minute strike-everything amendment to codify a definition of anti-Semitism – something Boyer felt so strongly about that he tried for weeks to amend it to a bill about Holocaust instruction over the wishes of Holocaust survivors and most Jewish groups who supported the language but wanted to keep the issues separate.

Additional funding for universities – ASU is set to receive more than $40 million, and UA and NAU roughly $20 million each, more than half of that ongoing, doesn’t quite meet the demands Boyer and the universities had, but it comes closer. But getting Boyer on board with the flat tax plan will take more work, especially after former Gov. Jan Brewer came out strongly against the plan in an op-ed published in the Arizona Republic last week.

In her essay and in a subsequent interview with the Arizona Capitol Times, Brewer – a Republican who took office at the height of the Great Recession — said she believes legislative Republicans and Ducey are making a version of the same mistakes her predecessor, Gov. Janet Napolitano, made in the mid-2000s that contributed to Arizona having a harder recession than other states. The state was flush with cash during the Napolitano administration and spending reflected it, but by the time Brewer took office in 2009 the economy was in shambles.

The current crop of lawmakers, most of whom weren’t in office in 2009 and 2010, might not remember how painful it was when the state sold off its own buildings and worried about making payroll, Brewer said, but she does and she fears Ducey’s successor might have a similar experience if lawmakers make permanent tax cuts based on a one-time influx of federal money.

“I thought it was incumbent upon me to refresh everybody’s mind that, probably in a few more years, whoever is governor is going to be faced with a terrible situation,” Brewer said.

Boyer said Monday that he thought Brewer nailed it with her op-ed, and he still won’t vote for the budget in its current form. It doesn’t do enough to pay down debt from the recession or have enough funding for universities and community colleges, and the flat tax will hurt revenue for cities and towns, he said.

“I just think that we need to be thinking more long-term, which I’m not sure that we’re doing,” Boyer said.

Sen. Kelly Townsend, R-Mesa, who previously vowed to vote against the budget if her stalled election legislation wasn’t passed first, said Monday she was a tentative “yes” because the House plans to vote on her election bill tomorrow. However, Townsend said she still wants to review complaints about the budget from conservatives. and she doesn’t think the Legislature is ready to adjourn for the year, budget or no.

“We do need to get the budget done,” she said. “Whether or not we go home is another decision.”

Beyond the $12.8 billion in spending and billions in tax cuts, the set of budget bills released Monday contain several controversial policy provisions, including giving Attorney General Mark Brnovich, a Republican, sole authority over election litigation and barring Democratic Secretary of State Katie Hobbs from retaining outside counsel, removing the Arizona Capitol Museum from Hobbs’ authority and giving the State Board of Education, not Democratic Superintendent of Public Instruction Kathy Hoffman, the authority to investigate misconduct by school staff.

One budget bill would also bar universities from requiring faculty or students to receive Covid vaccinations, coming on the heels of an unsuccessful Senate vote to prevent any government entities or businesses from requiring vaccinations. Another blocks cities or towns that reduce their law enforcement budgets from receiving their portions of state shared revenue – something multiple lawmakers couldn’t accomplish through normal legislation this year.

Photos: Arizona’s 2019 inauguration

Arizona’s statewide officials were sworn in during the state inauguration on January 7, an event that featured more than wonky policy talk.

Amid the speeches promising bipartisanship and action on urgent issues facing the state, officials shared tender moments with their loved ones on stage as members of the public and honored guests alike cheered.

The action wasn’t all on stage. More than a few familiar faces dotted the crowd, including former Gov. Jan Brewer and U.S. Sen. Martha McSally, who was appointed in December to fill the late Sen. John McCain’s seat.

The day began another four-year term for Gov. Doug Ducey, but also featured the swearing in of two statewide Democratic officeholders: Secretary of State Katie Hobbs and Superintendent of Public Instruction Kathy Hoffman, both of whom drew cheers from the crowd at just the mention of their names.

Click on the photo below to view slideshow.

Political experts ponder Franks endorsement – boost or baggage?

Sen. Steve Montenegro (R-Litchfield Park)

After resigning amid scandal, Trent Franks called on Sen. Steve Montenegro to run for his 8^th Congressional District, a call the state senator embraced wholeheartedly in announcing his candidacy.

Franks’ support may not have been the big win Montenegro needed to carry him to victory, but under other circumstances, it would have at least been easily considered a gold star for his campaign, political consultants said.

After two former staffers reported Franks had discussed surrogacy with them – apparently leaving open the possibility that he intended to impregnate them himself and reportedly offering millions in exchange – the value of his endorsement was called into question.

Constantin Querard, Montenegro’s consultant on the special election campaign, said while Franks’ endorsement may not be quite the hot commodity it used to be, he didn’t know whether his backing could hurt Montenegro.

Some people will have concerns about the Franks endorsement, he said, but other CD8 voters will still consider it a good thing.

Besides, there’s no escaping their ideological similarities, and Montenegro was already tied to Franks after working for him for years.

“I don’t think there’s anything to be gained by pretending otherwise,” Querard said.

Republican consultant Chuck Coughlin said he doesn’t think the endorsement does much to give Montenegro an early boost because of the unique circumstances of Franks’ resignation.

Beyond that, Coughlin said he doesn’t think an endorsement from Franks is enough to actually win over his core constituency.

He expects the most impactful endorsements to come from President Donald Trump and former Gov. Jan Brewer. Phil Lovas, former state legislator and Trump campaign chairman, is likely to get the president’s support.

One endorsement Montenegro won’t get is Gov. Doug Ducey’s, but neither will his fellow Republican candidates – the governor said December 12 he doesn’t get involved in primaries.

Ducey said whether Franks’ endorsement would help or hurt Montenegro was a “question for the electorate” to decide.

With or without Franks, Coughlin said he doesn’t think Montenegro is a real contender in the district anyway.

“Quite frankly, and I want to put this carefully, the political reality of an ethnic name in a heavily Republican district is not really helpful,” he said, adding that challenge to what he sees as a lack of name recognition for Montenegro to begin with.

Still, former House Minority Leader Chad Campbell said touting the endorsement was a smart calculation for the primary.

Whether it ultimately has lasting, negative effects in the general election, he added, won’t matter when the Democratic challenger likely doesn’t stand a chance.

“Quite frankly, I don’t think Steve Montenegro or any Republican in that primary is even thinking about the general election,” Campbell said. “They’re not concerned about it in the least because the numbers are so favorable to them. So, I’m sure Steve’s calculation is, ‘This gets me through the primary, and in the general election, who cares. The Democrats can’t catch me.’”

Yellow Sheet Report Editor Jeremy Duda contributed to this report.

Prison health care case shaping up for years of litigation

Chick Arnold set out to do one thing when he filed the historic lawsuit that bears his name: compel the state to provide services for the seriously mentally ill as mandated by law.

He accomplished that mission after 33 years of litigation.

Arizona saw seven governors come and go in that time, and another case that addresses a forgotten population – prisoners and their health care – began.

Arnold’s 1981 case was simple. He said the state was not providing services as dictated by legislation passed in 1979. The state did not deny that, but claimed there simply was not enough money to meet everyone’s needs.

Arnold compared his role in the process to Columbo, the fictional TV detective whose seeming absent-mindedness masked his shrewdness.

“I sort of walk in and scratch my head and say, ‘So, what’s the problem here?’”

The problem in the case was that a pattern emerged that caused it to drag on for so long.

The court would issue an order requiring the state to do something. The defendants, which originally included the Arizona Department of Health Services and Maricopa County, would commit to comply – but didn’t. The plaintiffs would file a motion for contempt. The defendants would respond with a corrective action plan, and the court would approve it before the whole cycle started over.

And now, Arnold said, the same thing is happening in the Parsons v. Ryan prison health care case.

Advocacy

Parsons lacks a Columbo like Arnold, who became the plaintiff in Arnold v. Sarn as the court-appointed guardian for people who were entitled to services by law but who weren’t receiving them.

Parsons was filed in 2012 and settled in 2014, yet litigation continues. It is fueled by the private contractor Corizon and the Arizona Department of Corrections’ continued failure to fully comply with 103 performance measures.

Those performance measures dictate best practices, such as ensuring there be no lapse in chronic medication renewals, and were agreed upon by the parties, including Department of Corrections Director Charles Ryan and Assistant Director Richard Pratt.

“Presumably, they didn’t promise to do things that they thought were impossible,” said plaintiffs’ attorney David Fathi, director of the American Civil Liberties Union’s National Prison Project.

To terminate court-ordered monitoring of those measures, the state must show compliance in 18 out of the previous 24 months without three consecutive months of noncompliance within that time.

But the case is based on a “fuzzy” constitutional question, Arnold said.

Whereas his case could point to a statute with specific obligations of the state, he said there is no such statute laying out exactly what the Department of Corrections must do to care for prisoners.

Instead, the court has been asked to essentially advocate for the improvement of services.

He said this is the core of Parsons’ unfortunate similarities to Arnold v Sarn. The state is required to provide medical care to its prisoners, and an outside advocate such as the ACLU had to come in to ensure that obligation was being met.

But the court is limited in what it can do to advance that interest.

“It lasts forever because the court doesn’t want to let go, yet they can’t fund it,” Arnold said.

And in Parsons, the fuzziness has opened the door to criticism lobbed against recently retired U.S. Magistrate Judge David Duncan, who has been accused by various people on the state’s side as exercising bias.

Duncan drew criticism through the course of increasingly sharp admonishments against the state as he grew more frustrated.

His grandiose sermons from the bench were punctuated with threats of contempt charges and monetary sanctions – threats that materialized in an order for nearly $1.4 million to be paid for noncompliance with 10 performance measures.

The state has said it will appeal Duncan’s order, a detour that will likely take months to resolve.

Charles "Chick" Arnold — Charles “Chick” Arnold

Arnold’s recollection of the judge who oversaw most of his case bore striking similarities. He said Maricopa County Superior Court Judge Bernard Dougherty quickly became “quite energetic in his advocacy.”

But after 25 years on the case, Dougherty, like Duncan, retired.

And from there, Arnold said, the court was not as energetically involved. That left the parties to get more creative to continue in the right direction.

“It was time,” he said.

It was time for the case to find a champion within the state, something he said the Parsons case is lacking.

Executive

Picture it: The governor locked in a warm embrace with the plaintiff in a case against the state, having just recognized the value of that legal challenge.

This was not a scene playing out between Gov. Doug Ducey and Victor Parsons, the titular plaintiff in Parsons v. Ryan.

This was former Gov. Jane Hull embracing Chick Arnold.

A defendant in the case at the time, Hull had actually gone to court for a contempt hearing, Arnold recalled. So had then-Health Services Director Ted Williams, who Arnold said brought a toothbrush with him in case he’d have to spend the night in jail.

Hull was not the only governor to see eye-to-eye with Arnold.

Former Gov. Jan Brewer made the case a priority and shepherded it to a conclusion that included enhanced services for about 19,000 people in Maricopa County alone and another 7,000 to 8,000 people across the state.

In part, Arnold said, that came from a willingness by everyone involved to admit they could not do it all for everyone, that there were “priority clients.”

“The advocacy had to be like ‘The Price is Right’ – the closest without going over,” he said.

In Parsons, though the performance measures exist, the parties do not share a common goal line.

And there is no one like Brewer to bring the case home.

She, of course, had her personal reasons for getting involved.

Arnold said Brewer had a family member with mental illness. She was especially sensitized to what was at stake in the case and what those services meant to the people who needed them.

Ducey, he said, does not likely have the kind of coincidental experience in the Parsons context. But that doesn’t mean he cannot make a difference.

“Of course, the governor could be more assertive in trying to confront the issues that are problematic in getting that case resolved,” Arnold said.

After all, Ducey was the one who appointed Charles Ryan, and he could be the one to remove him.

Ducey’s office did not respond to multiple requests for comment.

In a text to the Arizona Capitol Times on June 29, spokesman Daniel Scarpinato said, “We just don’t really have anything new to say right now.”

Ducey was asked about Ryan at an event on July 11, however. The governor responded with praise for the director and a jab at Duncan, who left the bench on June 22 due to health challenges following a series of strokes.

“I have complete confidence in Charles Ryan,” Ducey told reporters, “and I think that we’re going to have our agency directors run our agencies, not judges.”

The Department of Corrections declined to comment, too, and another request for comment went unreturned from attorney Daniel Struck, whose firm Struck Love Bojanowski & Acedo has been hired to represent the state to the tune of at least $1.9 million as of last July.

Their silence on the issue and the governor’s is indicative of a significant obstacle.

“The people at the health department always wanted to do the right thing,” Arnold said. “They were sympathetic to the plaintiffs’ efforts. I don’t see that in Parsons.”

Plaintiffs’ attorney Fathi said the case could come to a close very soon – “if the state would fix its obviously broken health care system.”

“But it seems more interested in fighting in court than in fixing the problems that are obvious and plain for all to see,” Fathi said. “The case will end eventually, but probably no time soon.”

Arnold sees a bitterness in Parsons that was never present in his case. And even without that negative energy, Arnold went on for more than three decades.

Ultimately, he said, reason prevailed.

But Parsons has gone beyond reason.

“There is room for wiggle, and that creates room for too aggressive advocacy,” Arnold said. “And that’s a fatal impediment. The case will never resolve so long as the lawyers bring that kind of energy to the case.”

Fathi said he’s been working on cases like Parsons across the country for more than 20 years, and Parsons is “an extreme outlier” in terms of the hostility exhibited by the state and its counsel.

Typically, he said, when two sides reach a settlement, there is agreement that something is broken and that they must work together toward a safe solution.

In this case, it hasn’t worked that way.

“There has been litigation over every little thing, every little word in the settlement agreement. And that has been counterproductive,” Fathi said. “That’s unfortunate for, first and foremost, the prisoners who are at the mercy of a broken system. It’s unfortunate for the taxpayers of Arizona who are paying the private law firm millions of dollars. It’s unfortunate for everyone. And it doesn’t have to be this way.”

Proclamations of all kinds, just call the governor to be recognized

Gov. Doug Ducey stands with NASCAR driver Jimmie Johnson as he declares February 16, 2017, "Jimmie Johnson Day" in Arizona at the Capitol. (Photo courtesy Governor's Office via Twitter) — Gov. Doug Ducey stands with NASCAR driver Jimmie Johnson as he declares February 16, 2017, “Jimmie Johnson Day” in Arizona at the Capitol. (Photo courtesy Governor’s Office via Twitter)

You may not have celebrated Arizona Leafy Greens Month last November. Or Jewish Sports Heritage Month in April. Or Medical Billers Day on March 30.

But the state of Arizona recognized all of them, plus many hundreds more, in the past year, partly out of tradition and as a way to engage directly with the public.

It’s not just names and numbers on a page, but real people who care deeply about the issue or person they’re seeking recognition for, said Laddie Shane, Gov. Doug Ducey’s director of constituent engagement.

“The governor is really big about showing what’s great about Arizona. … We are recognizing something about Arizona or recognizing people that are working hard on a cause,” Shane said.

Proclamations and special recognitions comprise a major part of the gubernatorial constituent services operation, for both the Ducey administration and those that came before it.

A summary of special recognitions from Ducey’s office shows more than 500 different groups or individuals were officially recognized by the Governor’s Office from May 2016 to May 2017.

They range from awareness months for some of the rarest and most devastating diseases – like Rett syndrome, a rare genetic mutation affecting brain development in girls, and neuromyelitis optica, a chronic disorder of nerve tissue — to recognition of notable Arizonans, visiting conferences, businesses, government workers and underappreciated professions.

Among the topics that were officially recognized by Ducey’s office in the past year: beer, Canada, diapers, pollinators, patriotism, Valley Fever, cowboy poetry (twice), the Golden Rule, tow truck drivers, Don Bolles, stepfamilies, lawn bowling, pressure injuries, and the tallest Christmas tree in Arizona.

Special recognitions have increased slightly under the Ducey administration, up from 2,776 in 2013, former Gov. Jan Brewer’s last year in office, to more than 3,000 in 2016.

Sometimes, the recognition includes events or a broader public effort. For Jimmie Johnson Day on February 16, Ducey rode with the NASCAR driver around the Capitol grounds and spun out in front of the Executive Tower.

The governor recognized James Van Dyne for donating blood 600 times by declaring a week in September 2016 as Arizona Blood Donation Week. According to news reports at the time, Van Dyne has donated blood for 30 years and is the top donor of blood in the state.

Cowboy Poetry Week April 16 - April 22 — Cowboy Poetry Week April 16 – April 22

For the majority of recognitions, someone from the general public writes in to request the Governor’s Office give them a proclamation or commendation, according to Shane. The Governor’s Office rarely, if ever, denies a request, instead preferring to work with a person or group to find the type of recognition that fits their needs, he said.

The guidelines for special recognition are laid out on the governor’s website. Proclamations are for Arizona residents or nonprofits, never for-profit groups. They should have a statewide or regional tie. They shouldn’t duplicate similar ideas, so a specific topic or issue won’t be recognized multiple times per year.

Depending on the issue, an organization or person may get a day, several days, a week, multiple weeks or a month. A requester will specify what time they want their issue recognized, and the Governor’s Office also considers how timing coincides with national or other states’ efforts on similar topics, Shane said.

For a personal commendation request, the Governor’s Office asks that people be at least 70 if they want their birthday recognized, and that they be married at least 25 years for anniversaries.

Arizona Beer Week Feb. 9 - Feb. 18 — Arizona Beer Week Feb. 9 – Feb. 18

The Ducey administration started another type of recognition by sending commendations to new restaurants when they open in Arizona, Shane said. It’s another way for the governor to recognize Arizonans who are doing business here, Shane said.

The various recognitions often overlap, making some days extra super-special.

For instance, on January 14, the state recognized five different occasions: the 27th Annual Tucson Association of Realtors Shootout, the Maricopa County Home Show’s 25th Anniversary, Arizona Concours d’Elegance, Health for Humanity Yogathon and Joseph Joaquin’s retirement.

On top of that, the whole month of January was proclaimed as four different special months recognizing birth defects prevention, human trafficking awareness, family prayer and cervical health awareness.

April was the most popular month for month-long recognitions with 23 proclamations, including safe digging, invasive plants, child abuse prevention, limb loss, adults learning to swim, landscape architecture, sexual assault awareness, county government, parliamentary law, fair housing, autism awareness, Parkinson’s awareness and “business credit management awareness and appreciation.” April really spread awareness around.

Meanwhile, December was just — December. No proclamations needed to make the holiday-est month special, it seems. Most people are spending time with their families in December, so the Governor’s Office doesn’t get a lot of requests at that time, Shane said.

Diaper Need Awareness Week Sept. 26 - Oct. 2 — Diaper Need Awareness Week Sept. 26 – Oct. 2

Chuck Coughlin, a Republican consultant who worked in former Gov. Fife Symington’s administration, said the proclamations can also serve as a way for industries to get media attention in a non-controversial way.

In the past decade or so, “it has become more fashionable for industry groups to use such proclamations to promote their products,” Coughlin said.

Matthew Benson, who worked as former Governor Brewer’s spokesman, said the gubernatorial proclamations can range from lighthearted to serious, but they all matter to someone.

“They matter to the organization or the group that’s bringing them forward,” Benson said. “What most of them have in common is that they’re trying to shine a light on an issue.”

An overwhelming amount of requests come into the Governor’s Office, so vetting the requests can be time-consuming, but it’s an important function of constituent services, Benson said.

“It’s a relatively painless way for the governor to show these folks that they matter and that their issue matters,” he said.

Rep. Frank Pratt’s legacy

Frank Pratt on June 7 2013, at the Arizona Chamber of Commerce and Industry’s Eggs and Issues breakfast. Pratt passed away Sept. 21, 2021, after a long illness. Pratt was a lawmaker since 2009, representing parts of Pinal and Gila counties. (Photo by Gage Skidmore/Flickr)

Arizona lawmaker Frank Pratt’s contributions to the lives of Arizonans will have a lasting impact on future generations. By all accounts, Rep. Pratt, who passed away on September 21, 2021, was an exceptional legislator who listened to all points of view with grace and courtesy. He was also extremely humble, often allowing others to bask in the accolades he himself had earned. It is for these traits, and for his willingness to represent his legislative district with the courage of his convictions, that the Arizona Association of Health Plans will always be indebted to this influential Arizonan.

In 2013, Arizona was faced with a monumental decision: whether to allow the Arizona Health Care Cost Containment System (AHCCCS, Arizona’s Medicaid agency), to accept federal matching funds that included Arizona expanding the number of people who could qualify for Medicaid health benefits. (For historical context, the proposal mostly restored Medicaid eligibility levels that Arizona voters passed in 2000 via Proposition 204.) As with other states, it would have been disastrous for Arizona NOT to undertake this option. Coming out of the “Great Recession,” Arizona’s budget could not maintain spending for AHCCCS at these levels. The impact would have meant hundreds of thousands of Arizonans would go without health coverage. Moreover, during this time the “hidden cost of care” was growing exponentially because of the number of uninsured individuals and families who, having no other option, were getting care from emergency departments across the state. This ultimately put tremendous pressure on health coverage rates for all Arizonans. Then-Governor Jan Brewer led the charge to combat this issue and formed a coalition of health care and business interests to help modernize Arizona’s Medicaid system and ensure coverage for eligible people.

Frank Pratt was one of the first who refused to accept the rhetoric from many in his own party, that this was “Obamacare” in disguise. He understood that, had the Arizona Legislature and the governor failed to adopt the legislation, they would have exacerbated the state’s economic problems, missing out on health care job growth, jeopardizing existing health care jobs, increasing pressure on the General Fund and increasing the costs of private insurance in Arizona. Just as important, Rep. Pratt knew that expanding AHCCCS eligibility also allowed Arizona to receive additional funding for the programs AHCCCS already had in place. His foresight over this past decade led to:

Creation of the entrepreneurial environment within Arizona’s health care delivery system that embraces innovation, including expanded telemedicine services, payment reforms, and targeted investments, with providers partnering with Medicaid managed care organizations to shape the system to deliver high quality care to our most vulnerable citizens.

Resolution of the decades-old lawsuit, Arnold v. Sarn, giving the mental health system the ability to innovate and expand services. For example, today Arizona provides permanent and supportive housing services to people living with a serious mental illness and ensures physical and behavioral health services are integrated to meet members’ needs.

Expanded, enhanced Home and Community Based Services, keeping people cared for safely in their homes within their own family/community, rather than a nursing home or other institutional setting.

There are numerous examples of why Rep. Pratt’s service positively impacted the lives of so many. While he will receive praise from many throughout the state, Rep. Pratt would be more satisfied with knowing he had made a real difference for hundreds of thousands of Arizonans who may never know his name. He put political considerations aside and moved forward with the best course of action for Arizona. At the Arizona Association of Health Plans, we remember and honor his legacy.

Lorry Bottrill is CEO of Mercy Care and board chairman, Arizona Association of Health Plans.

Report suggests court strike 2011 law requiring private health care for prisoners

A special expert is recommending to a federal judge that she override a state law that requires the Department of Corrections to farm out health care for inmates to private companies.

In a 138-page report submitted Friday, Dr. Marc Stern detailed what he said are systemic problems in the state meeting its legal obligation to provide health services to inmates.

Some, he told U.S. District Court Judge Roslyn Silver, result directly from “severe underfunding” of health care, with a lack of proper staffing.

His report put current agency spending at about $195 million. Stern figures it would take an additional $73 million to bring spending up to what the state pays for similar services through its Medicaid program.

Those dollars, he said, should be used for the current private provider, Centurion, to increase staff and salaries.

But even assuming lawmakers and the governor would provide more cash, Stern said there’s a more important structural change that needs to be made: It should be state employees responsible for and providing the care, not some outside contractor.

“In my opinion, privatization of health services at Arizona Department of Corrections is an important barrier to compliance with performance measures and other risks to patient safety,” he wrote. More to the point, he recommended to Silver that the 2011 state law mandating privatization of prison health “be rescinded or overridden so that ADC can return to self-operating health care services.”

Stern’s report is the latest in a multi-year lawsuit against the state by the American Civil Liberties Union.

There was a settlement in 2014 with the state agreeing to meet certain standards for health care for inmates at prisons statewide. Since then, however, there have been charges that the agency has failed to comply.

Officials at the Department of Corrections, who had seen a version of the recommendations prior to release on Friday, did not take a position. That is because the issues raised go to decisions made not by the agency but by the governor and lawmakers.

“We are reviewing the report,” said Patrick Ptak, spokesman for Gov. Doug Ducey. He also said that the governor “is committed to improving inmate care.”

But former state Rep. Bob Robson, R-Chandler, suggested that the findings – and the recommendation to scrap the private contract for health care – should come as no surprise.

“I wasn’t a fan of it,” said Robson who was in the Legislature in 2011 when his colleagues and then-Gov. Jan Brewer approved the mandate to contract out health services. And Robson said the ramifications of that decision go beyond the level of care being provided.

“The whole thing is they put it all on the director,” he said, referring to Charles Ryan who just retired, saying that Ryan was stuck implementing the decisions made by lawmakers.

“It lies square in the Legislature’s ballpark,” Robson said. “And it lies in the Legislature’s ballpark to fix it.”

Stern, in his report to Silver, said having the state and its employees be responsible for the health care of inmates makes sense from a variety of perspectives. Some of that, he said, is financial and goes to the issue of there not being enough money to do the job properly.

“Switching back from privatization to self-operation would, in effect, immediately reduce that spending gap by shifting funds ADC is currently spending on the non-value-added parts of contract expenses,” Stern wrote. That includes things like duplication of services and the profit margin for the vendor, a figure he estimated at $10 million a year.

He also pointed out that the contract with Centurion, which began in July, marks the third firm that has a deal with the state for the services. Aside from transition costs, Stern said these changeovers create their own problems, posing a high risk for errors “and therefore a risk of substantial harm to patients.”

Robson said one way for the state to save money would be greater use of telemedicine, having a system where prison staff and lower-level medical workers can be available on site for routine matters while essentially having doctors and specialists on call.

Stern agreed. But he said the current system of contracting out has made that impossible.

He said that Corizon tried to form relationships with individuals and organizations to provide more telemedicine services. But he said the doctors and others declined because they didn’t want to invest the resources in setting up a system to multiple prison units when the prison health care company with whom they made the arrangements might, due to the nature of the contracting process “might … not be around long enough to make the venture worthwhile.”

Stern, in his report, also said if there continues to be privatized health care that the terms of the contracts need to provide true incentives to the outside company to reduce vacancies.

Under the current system, he said, the vendor must reimburse the state when a position was vacant. But that, he said, is on a dollar-for-dollar basis.

“Reimbursement does little to motivate the vendor to keep positions filled because at the end of the transaction, the vendor is (financially) whole,” Stern wrote. But that still leaves the risks to patients from understaffing.

He said any penalties should be higher than the amount of money the contractor saves.

Retired Gen. McGuire jumps into Arizona Senate race

FILE - In this May 20, 2020, file photo, then-Arizona National Guard Maj. Gen. Michael McGuire, director of the Department of Emergency and Military Affairs, answers a question at a news conference in Phoenix. McGuire, the former head of the Arizona National Guard, has filed papers to run for the U.S. Senate, joining what's likely to be a crowded field of candidates seeking the Republican nomination. (AP Photo/Ross D. Franklin, Pool, File) — In this May 20, 2020, file photo, then-Arizona National Guard Maj. Gen. Michael McGuire, director of the Department of Emergency and Military Affairs, answers a question at a news conference in Phoenix. McGuire, the former head of the Arizona National Guard, has filed papers to run for the U.S. Senate, joining what’s likely to be a crowded field of candidates seeking the Republican nomination. (AP Photo/Ross D. Franklin, Pool, File)

Retired Maj. Gen. Michael “Mick” McGuire, who led the Arizona National Guard through the state’s response to the COVID-19 pandemic, formally began his campaign for U.S. Senate on Tuesday, becoming the second major Republican looking to unseat Democrat Mark Kelly.

McGuire introduced himself with an online video highlighting his military career and presenting himself as a political outsider tired of “weak leaders” and “politicians who sit on the sidelines.”

In his video, McGuire describes himself as a “constitutional conservative” and calls for securing the border. He says he opposes abortion, will protect 1st and 2nd Amendment rights and “will walk shoulder to shoulder with law enforcement.”

McGuire, who retired earlier this year from the military and from his post as head of Arizona’s emergency management agency, was a visible presence and a booming voice beside Gov. Doug Ducey during televised briefings about the pandemic. The guard helped deliver goods and stock shelves at food banks and grocery stores as supply chains froze up and panicked shoppers snapped up food and paper products last year.

The Guard also built temporary medical facilities and flew supplies to the remote and underserved Navajo Nation as the outbreak hit the reservation hard. Guardsmen also responded to racial justice protests following the police killing of George Floyd in Minneapolis.

About 85% of the Guard has been called up in the last year, more than have ever responded to domestic needs, McGuire said in April at a news conference where Ducey introduced his successor at the National Guard.

McGuire also oversaw the deployment of Guardsmen to the southern border.

McGuire, an Air Force Academy graduate, flew F-16 fighters before joining the Arizona National Guard in 2001, where he continued as an F-16 instructor pilot and flew MQ-1B Predator drones. Gov. Jan Brewer appointed him adjutant general, the Guard’s top leader, and head of the Arizona Department of Emergency and Military Affairs in 2013. Ducey kept him in the job when he took office in 2015.

Solar energy entrepreneur Jim Lamon was the first major Republican candidate to jump in the race. Other Republicans considering a Senate run include U.S. Rep. Andy Biggs and Attorney General Mark Brnovich.

Kelly, a retired astronaut, won a special election last year to finish the late John McCain’s last Senate term. He is now running for a full six-year term. The race is one of the most high-profile contests in 2022 and will help determine which party controls the U.S. Senate.

SB1070 dramatized, fictionalized in Phoenix stage production

In a June 20, 2017, rehearsal, Actress Sandra Williams portrays Gov. Stewart, a character based on former Gov. Jan Brewer, in the production of "1070 (We Were Strangers Once, Too). (Photo by Katie Campbell/Arizona Capitol Times) — In a June 20, 2017, rehearsal, actress Sandra Williams portrays Gov. Stewart, a character based on former Gov. Jan Brewer, in the production of “1070 (We Were Strangers Once, Too). (Photo by Katie Campbell/Arizona Capitol Times)

Jeffrey Middleton is a self-described dyed-in-the-wool Democrat – a liberal with an offbeat sense of humor who has been “openly gay since birth.”

He also happens to be a middle-aged white man, making him perfect for the roles “1070 (We Were Strangers Once Too)” playwright and director James Garcia cast him in – perfect if you set aside his entire worldview. He plays characters based on former Senate President Russell Pearce, the anti-immigration bill’s sponsor, and former Maricopa County Sheriff Joe Arpaio, whose unmatched popularity and election loss were both driven by his immigration enforcement tactics.

As the title suggests, Garcia’s production, housed at the Herberger Theater Center, revolves around the passage of Arizona’s SB1070, the immigration legislation that sparked international controversy after it was passed in April 2010. In a stroke of irony, Garcia said his show, which opened June 23 and runs through July 9, was produced in part by a grant funded by money from a settlement against Arpaio.

Middleton was tasked with portraying men he reviles even as he tries to get into their heads.

Jeffrey Middleton plays Senator King, a "1070" politico based on former Senate President Russell Pearce, the sponsor of SB1070. He also plays Sheriff Joseph Romano, based on former Maricopa County Sheriff Joe Arpaio. In this scene, Middleton as King is unmoved by statistical arguments against the legislation. (Photo by Katie Campbell/Arizona Capitol Times) — Jeffrey Middleton (Photo by Katie Campbell/Arizona Capitol Times)

“I wanted to find the human side of them,” Middleton said, adding he doesn’t mind playing the “bad guys,” dubbed Senator King and Sheriff Romano. “I didn’t want to make them sympathetic, but I didn’t want to make them evil.

“There’s moments in the show where, especially Senator Pearce during the big monologue I have – he goes through a moment where he’s talking about his faith and what he believes and what he thinks is true… That’s what I want to portray.”

Middleton tried to meet Pearce to no avail. He thought even a phone call with the men he becomes on stage would help him understand how someone like Arpaio “gets up every morning and can look at himself in the mirror and not feel horrid for how he treats people.”

“I allow myself the opportunity to tell the story to the best of my ability…and then, I let it go,” Middleton said. “When I leave here, I go home and have a big ole glass of Scotch. I get rid of everything I had to say over the last hour and a half.”

In one scene between his Senator King and a staged reporter from the “lamestream liberal media,” Middleton talks about rounding up and shipping out “illegals” by the truckload.

As he leaves the stage, he hisses, “If you misquote me, I’ll sue the s**t out of you.”

He spits the line with venom at a young woman he genuinely adores in real life.

“We’re telling this story because it matters, and it will continue to matter until we kick those in the face who say it doesn’t matter,” he said before the first dress rehearsal, during which he stumbled ever so slightly over the threat. “As an activist, we all want to move the conversation forward.”

Anna Flores, in red pants, plays "1070" heroine Dulce Avila, who protests the passage of the legislation. Flores' character is an undocumented immigrant from Mexico protected under her Deferred Action for Childhood Arrivals status. (Photo by Katie Campbell/Arizona Capitol Times) — Anna Flores, in red pants, plays “1070” heroine Dulce Avila, who protests the passage of the legislation. Flores’ character is an undocumented immigrant from Mexico protected under her Deferred Action for Childhood Arrivals status. (Photo by Katie Campbell/Arizona Capitol Times)

The law was billed as a tool for the state to battle illegal immigration, though elements like one derisively dubbed by opponents as the “papers please” provision led to accusations of racial bias. A lengthy court battle followed, and several of the bill’s key provisions were struck down while others remain in effect, including the provision requiring police to question someone’s immigration status during routine stops if there is suspicion to believe the person is in the country illegally.

Although the protests at the Capitol were loud and visual for the media, polls conducted immediately after the law’s passage showed it had majority support, with one poll showing that about 70 percent of voters backed the new law.

The story opens on the day the Arizona Legislature passed SB1070. A mixed-status family of five sits around the dinner table, debating whether to stay.

Miguel Avila, played by Juan Gomez, rises to unleash an anguished wail before declaring, “We have to go.”

The heroine Dulce Avila, played by Anna Flores, convinces her mostly undocumented family to stick it out. What follows is a rapid depiction of the real consequences families faced over years.

Dulce’s sister Viri, played by Valerie German, is deported and later trapped in a box under the watch of the violent and repugnant Deputy Garcia, played by Alex Sanchez Vega.

Dulce herself finds security in her Deferred Action for Childhood Arrivals status and joins the protest movement, eventually facing off against Sheriff Romano.

Like Middleton, Flores aesthetically made sense to play Dulce – she’s Latina, she’s the right age and she comes from a mixed-status family. But she has been challenged to “honor the crisis” at the heart of “1070.”

Former Senate President Russell Pearce. (Photo by Ryan Cook/RJ Cook Photography)

Flores is a citizen, separated by “a physical giant” from several brothers in Mexico. When SB1070 passed, she walked out of her high school and joined her first protest alongside thousands of others.

“Ever since then,” she said, “there’s no way not to be involved.”

Still, her activism has never forced her to muster the kind of bravery Dulce does.

“Being a character who is both undocumented and willing to come face to face with an officer, that’s a very hard reality to accept,” she said. “I have to sell that. I have to make the audience understand that Dulce Avila’s courage is so strong and her fear is so strong and her willingness to protect her family is so overwhelming that she’s willing to do that.”

In the midst of the Avila family’s woes, the production offers fleeting political scenes.

Former Republican Gov. Jan Brewer, whose career was catapulted by SB1070, appears as Governor Stewart, played by Sandra Williams. Williams presents the governor with a dose of absurdity, relaxing at Senator King’s desk as she defends her signing of the bill.

And a meeting of the “Arizona Business Association” plays out, focusing on the economic impact of boycotts leveled on the state, including one by the National Council of La Raza, the country’s largest Latino nonprofit advocacy organization.

Playwright Garcia said “1070” has been in his head for a long time, but its release now coincides with the NCLR returning to Phoenix for a convention. The show will run just across the street from where thousands of politically active Latinos will be gathered.

Beyond his “opportunistic” reasoning, though, Garcia said there was a need for his message now.

“The state went through 1070. Immigrants lived through that. Things had started to calm down,” he said. “Trump’s election has terrified the immigrant community to a whole new level because they understand that he is the most powerful man in America and the world.”

Senate panel moves bill to create Lt. Governor

Sen. J.D. Mesnard, R-Chandler, and Sen. Sean Bowie, D-Phoenix, talk about their co-sponsored legislation to create a Lieutenant Governor position in Arizona during a Senate Government Committee hearing on Feb. 17, 2022. (Photo by Camryn Sanchez/Arizona Capitol Times)

A Senate committee voted Thursday to approve bipartisan legislation that will let voters decide if they want to establish a Lieutenant Governor in Arizona.

Senate Bill 1255 and Senate Concurrent Resolution 1024 would create the position that would go into effect in 2027, aligning Arizona with 45 states that already have a lieutenant governor.

Under current Arizona law, if a governor leaves before the end of his or her term the Secretary of State steps. This can result in the new governor being in a different party than the departing governor, which has happened several times, including in 2009 when former Republican Gov. Jan Brewer took office to replace former Democratic Gov. Janet Napolitano. It also happened in reverse when former Republican Gov. Evan Mecham was impeached and replaced by former Democratic Gov. Rose Mofford.

Brewer supported similar measures in the past on the grounds that the Secretary of State is not elected to serve as governor and voters don’t necessarily get a representative from the party they cast their votes for.

Apart from replacing the governor, the Lieutenant Governor would also be in charge of the Department of Administration under the bill.

With the proposed legislation, the Lieutenant Governor would be in the same party as the Governor and take over rather than the Secretary of State, keeping party control.

“Just because you’re from the same party doesn’t mean you’re on the same page but it’s to create cohesion when there’s a change in the governor,” the bill’s co-sponsor, Sen. J.D. Mesnard, R-Chandler said.

Mesnard said the Secretary of State has “zero to do with government management” and referred to a comment Ducey made in his state of the state address in which he said he was the first governor to give an eighth state of the state address in decades. Governors in Arizona history have died, been impeached and even been convicted while in office.

Arizona, Oregon, New Hampshire, Maine and Wyoming are the only states that do not have a lieutenant governor. Arizona, Oregon and Wyoming are the only states with no Lieutenant Governor in which a separately elected Secretary of State takes over for the governor if the governor cannot serve. In 17 states, the Gvernor and Lieutenant Governor are elected separately, but Mesnard wants the two candidates to run on a joint ticket.

Similar bills to create this office have been introduced in Arizona throughout the state’s history, including last year when the House passed a proposal 45-14, but it died without a committee hearing in the Senate.

Twice in the past, Lieutenant Governor legislation has made its way to voters and was rejected, but Mesnard said those versions are very different from what he is now proposing.

This year’s bill has at least survived a Senate government hearing and enjoys bipartisan sponsorship with Sen. Sean Bowie, D-Phoenix, signed on to sponsor as well.

Before the committee met on Thursday afternoon, Sen. Minority Leader Rebecca Rios, D-Phoenix, said she doubted Mesnard’s legislation would have more than a handful of Democratic votes and does not have hers.

Bowie thinks there is work to be done to pass the bill.

“I imagine there might be one or two Republicans opposed so yeah we might need Democratic support so I’m going to whip support for it.” He and Mesnard both said they are open to amending the Department of Administration section of the bill if it has enough opposition but want the lieutenant governor to have a position.

“One of the reasons to oppose the bill is why create this job, pay them a salary when they have nothing to do?” Bowie said.

Next, the legislation will have to get past Rios and the legislators outside of government committee on the Senate floor.

Solving the crisis, anarchy Democrats created is pro-immigrant

For far too long, Democrats have been able to frame their willful indifference to the tragedy unfolding on our southern border as “pro-immigrant.”

The corollary, always implied and often explicit, is that President Trump and anyone else opposed to illegal migration is “anti-immigrant” and even racist.

The entire premise is absurd. President Trump and the Republican Party have always supported immigration — they simply believe it should take place on America’s terms and for America’s benefit.

Today, that means emphasizing merit-based immigration — encouraging highly qualified foreign workers who are ready to contribute the most to the American economy and to take the steps necessary to come to our country legally, not through uncontrolled streams of Central America’s poorest citizens challenging our border enforcement system with bogus claims of asylum.

Supporting the latter is what Democrats mean by “pro-immigrant.” The results have been tragic and unsustainable, and to deny there is a crisis is no longer a tenable position. The law enforcement professionals who are all that stand between us and the complete disintegration of our borders are unequivocal: the crisis has pushed our system “beyond the breaking point.”

Even Barack Obama’s own Homeland Security Secretary, Jeh Johnson, acknowledged that “By anyone’s definition, by any measure, right now we have a crisis at our southern border.”

It would be bad enough if this were an oversight, but it’s not. This crisis was created intentionally by a Democrat Party that hopes unchecked illegal immigration will deliver election victories for liberal candidates.

The Democrats brought us to our current breaking point with years of outright refusal to meaningfully enforce immigration laws and incessant pandering to the mostly-white activists who think mass third-world migration is a moral imperative.

As the President correctly noted at his Grand Rapids rally March 28, left-wing political money has sent an army of immigration lawyers to teach “caravaners” and other faux asylum seekers the magic words they need to say to be allowed to disappear into our country.

The results are as predictable as they are tragic. Our legal asylum system has become an overloaded, unsustainable joke, and the news has filtered back to source countries, encouraging even more illegal immigration. Groups numbering in the dozens turned to hundreds, then thousands, and now tens of thousands of economic migrants seeking to invade our country.

To this day, the leaders of the Democratic Party remain adamantly opposed to border security and merit-based immigration. Presidential hopeful Robert Francis “Beto” O’Rourke, for example, kicked off his campaign by declaring that mass immigration across the southern border by asylum seekers actually makes our communities safer.

Fortunately, and at long last, we have a President prepared to call the liberals’ bluff. Ridiculous accusations that the desire to end this crisis and institute an orderly immigration system on our own terms is “anti-immigrant” won’t cut it after the President’s enthusiastic endorsement of increased merit-based immigration at the Conservative Political Action Conference in February.

If Democrats continue to refuse, as they have throughout the Trump presidency, to support reasonable border security solutions and provide the funding and resources we need to secure the border and remove illegal aliens in a safe and orderly fashion, President Trump has made clear there is another route: cutting off aid to the source countries in the northern triangle of Central America, El Salvador, Guatemala, and Honduras, as well as possibly closing the border with Mexico entirely. This would force those countries, not us, to bear the consequences of the caravans until they are prepared to act as real partners to counter them.

All of the forces of the open-borders consensus — Democrats, immigration lawyers, liberal activists, and the mainstream media — will have to come to terms with the fact that merit-based immigration is the only way forward.

Democrats often accuse President Trump of being “anti-immigrant,” but it was their policies that created the humanitarian catastrophe we are now witnessing on the southern border.
Securing the border and introducing a merit-based immigration system is perhaps the most pro-immigrant approach we can take.

Jan Brewer is former Governor of Arizona

Speaker, some lawmakers resistant to Ducey’s push to end legislative immunity

Rep. Paul Mosley, R-Lake Havasu City, during a traffic stop in La Paz County March 27, in which he allegedly was clocked driving at 97 MPH in a 55 mph zone. The text is a transcription of the audio from the body cam video of the deputy.
IMAGE COURTESY OF PARKERLIVEONLINE.COM

A proposal by Gov. Doug Ducey to abolish so-called legislative immunity is getting some negative reaction from some lawmakers who enjoy its protections — and would have to vote to put it on the ballot for voters to repeal.

“It was put here for a reason, by the people, in the constitution,” said House Speaker Rusty Bowers.

House Minority Leader Charlene Fernandez said there are legitimate reasons that lawmakers need protections from being arrested in certain circumstances.

Rep. Vince Leach, R-Tucson, said the few lawmakers who have abused the immunity have paid the price.

And Sen. Lela Alston, D-Phoenix, who has been at the Capitol longer than anyone else, said Ducey’s call to repeal the provision reflects a misunderstanding of exactly what it says — a misunderstanding she said is apparently shared by some legislators who have tried to claim it.

“They think they have carte blanche to do whatever they wanted, whenever they wanted,” Alston said.

That occurred last year when Rep. Paul Mosley, R-Lake Havasu City, claimed legislative immunity when he was stopped for speeding. The deputy even has videotape of Mosley claiming he has driven as fast as 140 miles an hour because his legislative immunity allows him to do that.

Not true, said Alston, first elected to the Legislature in 1976.

What it actually says is that lawmakers cannot be arrested during the legislative session or in the 15 days leading up to the session unless they are charged with treason, a felony or “breach of the peace.” Nothing immunizes them from being arrested and prosecuted after the session is over.

The same provision also says lawmakers are not subject to “civil process” during the same period.

Ducey, in his State of the State speech Monday, referred to the provision as “legislative immunity.”

He said one reason people hold members of Congress in contempt is that they exempt themselves from many of the laws they pass.

“Let’s show the people of Arizona that their elected leaders will live under the same laws as every man and woman in this state,” the governor said.

Bowers, however, said he sees no reason to repeal the protection simply because some lawmakers have acted badly and then sought to escape being held accountable.

Leach said the whole idea of the protection is to keep a police officer or sheriff’s deputy from detaining one or two lawmakers whose votes are needed.

“You could render it nonfunctional,” he said of the Legislature if a member were kept away.

Anyway, he said, those who have abused the immunity have paid the price in bad publicity — and more.

“One member didn’t return,” he said, referring to Mosley who lost his re-election bid last year.

Fernandez agreed that the purpose of the provision is to ensure that lawmakers can get to the Capitol without being delayed.

“It wasn’t for me to get out of running a stop sign,” she said. And Fernandez said the fact that a few people have sought to misuse it is insufficient reason to eliminate the protection entirely.

Some lawmakers, however, side with Ducey.

“We’re no better than any of our constituents,” said Senate President Karen Fann.

She said that at one time — anywhere from 50 to 100 years ago — there were “games” played where a legislator might be stopped en route to a vote.

“I don’t think that’s an issue any more,” Fann said. “So it’s about time we got rid of all that.”

Rep. John Kavanagh, R-Fountain Hills, agreed, saying the days are long past when law enforcement would try to block a lawmaker from coming to the Capitol.

The issue of legislative immunity comes up from time to time.

In December, Rep. David Cook, R-Globe, stopped for drunk driving, gave police his House ID card rather than his driver’s license. But there is no indication that Cook claimed he could not be arrested.

Cook later apologized on his Facebook page. And Bowers sanctioned him by abolishing the newly created County Infrastructure Committee that Cook was to chair.

Cook couldn’t say whether he would be comfortable losing legislative immunity.

“I really don’t understand what that legal term means because I wouldn’t, I just don’t know,” Cook said. “I’ll study it a little bit.”

In 2012, Rep. Daniel Patterson, D-Tucson, claimed legislative immunity to avoid facing charges of domestic violence. He ended up resigning as it appeared his colleagues were going to have him ousted.

A year earlier, Scott Bundgaard, then a Republican state senator from Glendale, was seen by police fighting physically with his girlfriend alongside a Phoenix freeway. When police sought to arrest both, Bundgaard claimed legislative immunity from arrest, allowing him to avoid jail while his companion was locked up for 14 hours.

State employees, retirees will pay for health insurance trust sweeps

Arizona state employees will pay higher premiums and copays for health insurance next year, and some lawmakers say funding sweeps approved by the Republican-controlled state Legislature are partly to blame.

Employees and state retirees were notified September 18 that their insurance premiums will increase effective January 1, the first hike in employee’s insurance payments since 2011, according to a memo from the Arizona Department of Administration. Copays are also increasing for some services, while chiropractic care and certain therapy services will now be classified as specialist care, requiring co-pay hikes of $25 more per visit.

Premium hikes will cost an average of $151.32 more annually for state employees, an expense ADOA officials say is necessary given “skyrocketing” health care costs that have endangered the solvency of a trust fund that pays the costs of employee’s medical and dental claims, according to the memo.

The Joint Legislative Budget Committee, which was briefed on September 6 of the department’s decision to raise insurance costs, opposes the plan, as some argued that funding sweeps are truly to blame for the Health Insurance Trust Fund’s financial woes.

Since 2011, the Arizona Legislature has approved budgets that swept roughly $275 million from the trust fund under then-Gov. Jan Brewer and the first two years of Gov. Doug Ducey’s administration, according to legislative budget analysts.

That would have, at least for now, more than covered projected deficits for the trust fund, Rep. Mark Cardenas said.

“The employee’s health insurance fund has been the Legislature’s personal piggy bank for the last eight years,” the Phoenix Democrat said.

The most recent sweep, $78.9 million approved in Ducey’s second year in office, was the largest of six consecutive years of dollars swept from the trust fund to the state’s general fund to help balance the budget.

The Health Insurance Trust Fund is financed by insurance premiums paid by state employees and various state agencies, which as employers cover 90 percent of state workers’ health care costs.

Sweeping those funds to cover costs elsewhere in the state budget has now come at the expense of state’s 60,000 insured employees and retirees, said Sen. David Farnsworth, R-Mesa.

The adjustment for current employees ranges from a low of $48.10 to $301.08 annually.

The cost to retirees is even higher, since they pay 100 percent of their premiums. For instance, for those not on Medicare, premiums will jump from a low of $711.60 annually for a retiree-only plan, while family plans will increase as much as $2,636.40 annually.

“When the Legislature sweeps the fund over and over again, and then we come back and we have a crisis, we refund the fund on the backs of state employees,” Farnsworth said. “I don’t think that’s right.”

As a Republican lawmaker, Farnsworth is responsible for voting for some of those funding sweeps since he began serving in the Senate in 2013. Rep. Don Shooter, co-chair of the Joint Legislative Budget Committee, acknowledged that wounds to the Health Insurance Trust Fund are in part inflicted by lawmakers, and in the future, lawmakers must cease sweeping those funds.

“We kind’ve dug a hole, which now we’re living with,” the Yuma Republican said.

However, Shooter said he doesn’t regret voting for budgets that included those sweeps. While “it doesn’t take a genius” to realize that six consecutive years of funding sweeps wasn’t sustainable, Shooter said that budgets are never perfect, and the sweeps were necessary to secure budget deals in the past.

Ducey Spokesman Daniel Scarpinato said that the sweeps weren’t done lightly, and that the money was put to good use.

“The state was in a real bind during the recession, and continued to be when we took office in 2015,” Scarpinato said. “There were some difficult choices made. I think it was a good thing that we limited layoffs and drastic cuts, or more drastic cuts, to certain areas that would have really had a detrimental impact, (rather) than to just let cash sit around.”

State lawmakers already acknowledged problems with the Health Insurance Trust Fund earlier this year, when they approved a $75 million cash infusion as part of the fiscal year 2018 budget. But that was not enough, and now the only way to make the Health Insurance Trust Fund whole again is to stop future funding sweeps and to raise premiums, Shooter said.

Rep. Charlene Fernandez, D- Yuma, said hiking premiums wasn’t the only option. The Legislature could have continued to appropriate money to support the trust fund, and found other areas in the budget – Democrats have long proposed taking a closer look at the state’s multitude of tax credits, and letting some expire – to pay for it.

That option would have held state employees harmless from the Legislature’s errors, she said.

Memos to state employees and retirees note some benefits to the adjustments to insurance plans, including making preventative care free – under current plans, employees still paid a copay for routine checkups. The state has also sought to make the cost of care competitive compared to other government entities and the private sector, Scarpinato said. In years when the trust fund was considered healthy enough to sweep from, employees were sometimes given holidays from paying premiums, and in 2016, premiums were lowered for some employees and retirees he said.

“I think you’ve seen a real effort by the state, and not just under our administration, but really all through the recession, of really avoiding any increases in premiums for our employees, and in fact at one point in time actually lowering premiums,” Scarpinato said. “That is, I think, unheard of to anyone … who doesn’t work in state government.”

ADOA officials have no say over the past sweeps of the Health Insurance Trust Fund by lawmakers. In those years, the fund did have a healthy balance, well above best practices and industry standards, according to Megan Rose, an agency spokeswoman.

In recent years, however, state officials have underestimated the rising costs of medical care, she said, an indication of how much those costs have risen.

Now, based on those same industry standards, “with the reserve that we have and we keep, and the premiums we collect, we are not able to pay the bills,” Rose said.

In a budget request submitted this month to the Governor’s Office, officials wrote that the fund would have a deficit of $219.3 million in 2019 if no changes are made to the premiums paid by employees and state agencies. With the adjustments in premiums and copays, that has been trimmed to a projected $55.6 million deficit. Rose said premiums are designed to cover all the expenses from medical and dental claims of the state’s employees and retirees. No more, no less.

“The goal of the Health Insurance Trust fund is to collect what we spend. It’s not meant to be some type of savings account,” she said.

State Supreme Court hears arguments on legality of Medicaid expansion

The fate of health care for 400,000 Arizonans could depend on what seven justices of the state Supreme Court believe voters said they wanted 25 years ago.

There is no question but that Proposition 108, approved in 1992, requires a two-thirds vote of both the House and Senate for any new or increased tax. The constitutional amendment also applies to the “authorization of any new administratively set fee.’’

What is also clear is that the Legislature voted in 2013 to allow the director of the Arizona Health Care Cost Containment System, the state’s Medicaid program, to impose an assessment on hospitals to pay for the state’s share of a federal program to provide health care to more people. But that measure passed with only a simple majority.

The attorney for Republican lawmakers who opposed the assessment – and had enough votes to block it if it needed a two-thirds vote – told the justices October 26 that means the measure was illegally enacted.

Christina Sandefur of the Goldwater Institute acknowledged that if the court agrees, that eliminates the $290 million the assessment is expected to raise this year, the funds needed to get the federal dollars that pay for the care for the 400,000 Arizonans.

But she told the justices that as harsh as that result may seem, that’s precisely what voters had in mind in 1992 when they sought to put curbs on the power of lawmakers to extract more money from the public.

Christina Sandefur of the Goldwater Institute (Photo by Rachel Leingang, Arizona Capitol Times)

“The voters wanted to place constraints on the Legislature and on the legislative process,’’ Sandefur said. “The voters were very clear. They wanted to change the status quo.’’

Timothy Berg, who represents the state and AHCCCS, conceded at least part of the point of what was behind Proposition 108.

“The people were afraid of the Legislature just continuing to raise the general level of taxes,’’ he told the court. “And they recognized that sometimes the Legislature might be clever and use the word ‘fee’ instead of ‘tax,’ or ‘assessment’ instead of ‘tax.’ ‘’

But Berg pointed out that another section of the constitutional amendment specifically exempts fees and assessment that are authorized by statute which are set by a state officer or agency.

“The voters were concerned about a rising tax burden,’’ he said. “I don’t think they were concerned that the Registrar of Contractors was going to say, ‘Instead of paying $5 to file something you have to pay $15 to file.’ ‘’

And Berg argued that the assessment that pays for the health care – one that is paid solely by hospitals which are subject to AHCCCS regulation – fits the latter category.

Sandefur, however, said upholding the hospital assessment as legal would set a bad precedent. She said it would provide a road map for a bare majority of legislators to raise money by simply authorizing state agencies, headed by unelected bureaucrats, to impose fees – fees that would take a two-thirds vote if lawmakers had enacted themselves.

Prior to 2013, Arizona law required the state to provide free health care for anyone below the federal poverty level.

Gov. Jan Brewer (Photo by Evan Wyloge/Arizona Capitol Times)

That year then-Gov. Jan Brewer sought to take advantage of a provision in the federal Affordable Care Act whereby the state could increase eligibility to 138 percent of the poverty level and the federal government would pick up virtually all of the cost.

But to get those federal dollars, the state had to agree to restore coverage for single adults below the federal poverty level. Enrollment had been halted years earlier when the Great Recession slashed state revenues.

Brewer hatched a plan to have that cost picked up by hospitals. Most did not object because the amount of the assessment would be less than the losses they were incurring because of the high number of people showing up in their emergency rooms – people who they could not legally turn away – who had no ability to pay.

Most of the Republicans who control the House and Senate were opposed.

But Brewer found a few who liked the idea. And with all the Democrats in support, she got the plan approved on a simple majority vote.

That led to the lawsuit by the other Republicans.

Sandefur told the justices that Proposition 108 clearly does away with the idea of majority rule. But she said that’s what voters wanted.

That argument has so far failed, with both a trial judge and the state Court of Appeals concluding that there was no constitutional violation and the simple majority vote was enough.

The justices could find that Sandefur is correct and the constitutional requirement does require a two-thirds vote, but conclude that its wording is not exactly clear. And given that lack of clarity, they could make their ruling prospective only, applying the supermajority requirement only to future fee authorizations but allowing the hospital assessment to remain.

No date was set for a ruling.

Trump administration challenges Arizona’s DACA legal arguments

Attorney General Mark Brnovich is getting no help from the Trump administration in his last-ditch bid to deny driver’s licenses to “dreamers.”

In fact, the Department of Justice is urging the U.S. Supreme Court to reject his plea. Instead, Noel Francisco, the federal solicitor general, is telling the justices that they should let stand a ruling by the 9th Circuit Court of Appeals which voided the Arizona policy. He said there is reason to believe that the appellate court reached the correct conclusion based on the evidence before it — and that Arizona is legally wrong.

The legal merits of the case aside, Francisco said that Arizona appears to be the only state in the country that has decided those in the Deferred Action for Childhood Arrivals program are not entitled to licenses. Given that, he said there is no reason for the nation’s high court to step in.

Anyway, Francisco said, Trump already has announced he will be rescinding the 2012 policy established by his predecessor that allows those who arrived in this country illegally as children to both remain without fear of deportation and gives them Employment Authorization Documents allowing them to work legally while they are here. If DACA goes away, he said, the number of Arizona dreamers eventually will dwindle to nothing

Francisco acknowledged the president’s decision to kill the program is being challenged. But he told the justices that there is no reason for them to even consider whether the Arizona policy is legal until they decide whether to hear that other case.

The case traces its roots back to an executive order issued in 2012 by then-Gov. Jan Brewer as DACA was being implemented telling the state Department of Transportation not to issue licenses to those accepted into the program by the U.S. Department of Homeland Security.

Brewer cited a 1996 state law that says licenses are available only to those whose presence in this country is “authorized by federal law.”

She argued that Congress had not approved DACA, meaning the federal agency had no legal authority to let those in the program remain or work. And what that meant, Brewer said, is they were not “authorized” to be here.

That argument failed to convince federal appellate judges who said Arizona cannot decide for itself who is legally entitled to be in this country.

In seeking Supreme Court review, Brnovich is arguing that neither Brewer, in issuing the executive order, nor successor Doug Ducey in trying to enforce it, is doing anything wrong.

He pointed out that in creating DACA, Homeland Security conceded that it “confers no substantive right, immigration status or pathway to citizenship.” And Brnovich noted that the Office of Legal Counsel within the Department of Justice has said in its own writing that DACA “does not establish any enforceable legal right to remain in the United States — and it may be revoked by immigration authorities at their discretion.”

Beyond that, Brnovich contends that Obama exceeded his authority in establishing the DACA program in the first place.

But Francisco, in his agency’s brief to the Supreme Court, said that none of that provides a reason for them to intercede or disturb the 9th Circuit ruling.

He said the state never raised the issue of the validity of DACA when the case first went to a trial judge in Phoenix. And the appellate judges, noting that fact, said the issue was not properly before them.

Francisco told the justices that it would be improper for them, as the ultimate appellate court, to be the first to consider that argument when it had never been considered by lower courts.

Beyond that, Francisco said even Brnovich acknowledges the federal government has authority over immigration and the state cannot intrude on the exclusive right of the federal government to classify different kinds of aliens. He said that backs up the conclusion of the appellate court that found the state regulation on licenses for DACA recipients was preempted because the state had created its own classification, giving licenses to some people with Employment Authorization Documents but not to others.

“The court reasoned, by distinguishing between recipients of federal EADS that the federal government treats the same in all relevant respects, Arizona’s policy distinguishes between noncitizens based on its own definition of ‘authorized presence,’ one that neither mirrors nor borrows from the federal immigration classification scheme,” Francisco wrote.

More to the point, he said even if that conclusion by the 9th Circuit is incorrect, there is no reason for the Supreme Court to intercede because “it does not conflict with any decision of this court or another court of appeals.”

There was no immediate comment by Brnovich to the Department of Justice legal brief.

Tucson’s rebuke to the ‘sanctuary’ movement speaks volumes

Tucson’s resounding rejection of an activist-led push for “sanctuary” policies is a welcome sign that sanity can still prevail even in an age of growing extremism.

Proposition 205, the latest and most brazen attempt to frustrate the enforcement of federal immigration law, went down in flames November 5. This was a complete reversal after years of increasing momentum for the open borders lobby, which has successfully pressured cities, counties, and even entire states to adopt “sanctuary” policies that prohibit law enforcement from cooperating with U.S. Immigration and Customs Enforcement.

The measure that Tucsonans rejected by a 2-1 margin was similar to the sanctuary policies implemented elsewhere, but it went further in both style and substance. Officially titled “Tucson Families Free and Together,” Proposition 205 branded the concept of Tucson police and city officials working with federal agents as “collaboration,” as though the federal government were an occupying army. Even working with the feds on normal criminal investigations would require a memorandum explicitly stating that immigration laws would not be enforced at any point. It would even have allowed just about anyone to sue the city of Tucson if any official tried to enforce immigration law.

All sanctuary laws are explicitly designed to defy federal law, but Proposition 205 also ran counter to Arizona’s own laws, urging police to disregard their authority and responsibility under state law to determine the immigration status of individuals they detain in the course of their normal duties.

When I was governor, state lawmakers and I saw this type of ploy coming. I signed legislation specifically to stop the spread of sanctuary cities, stating, “No official or agency of this state or a county, city, town, or other political subdivision of this state may adopt a policy that limits or restricts the enforcement of federal immigration laws to less than the full extent permitted by federal law.”

Tucsonans rejected Proposition 205 decisively. That vote was more than symbolic – it indicates several concrete facts about the state of play in the immigration debate.

First, that sort of result doesn’t come from mere partisan turnout. Tucson is a solidly Democratic city. The mayor is a Democrat. Every member of the City Council is a Democrat. All three of Tucson’s U.S. representatives are Democrats. And yet, on the same day that 55% of Tucson voters elected yet another Democratic mayor, 71% of them voted against Proposition 205.

Fundamentally, support for sanctuary policies does not come from voters; it comes from far-left open-borders activists. Polls consistently show that Americans – even Democrats – overwhelmingly oppose sanctuary policies and believe local law enforcement should allow the federal government to deport criminals and arrestees if they are in the country illegally.

Second, the vote in Tucson shows that strong leadership at higher levels of government can help prevent activists from sneaking their extremist policies through at the local level. Part of the reason that Tucson’s Democratic mayor came out strongly against Prop. 205 is that he knew his city stood to lose more than $100 million of state money – and millions of dollars more in federal grants under the Trump Justice Department’s new directives – if the measure passed.

Pressure works, especially when money is involved. There is no reason liberal cities should be allowed to burden their states and the country as a whole with the costs of their refusal to uphold the law. Democratic politicians have to know that if they “collaborate” with the open borders activists, there will be a steep price to pay.

That’s why I fought for anti-sanctuary policies in Arizona, and it’s also why President Trump instructed his Justice Department to withhold grant money from sanctuary cities – those policies work.

Tucson voters dealt the sanctuary movement a crippling blow, proving that the will of the people can still prevail over the machinations of radical activists.

Jan Brewer is a former governor of Arizona.

U.S. Supreme Court wants to hear from Trump on ‘dreamers’ driver’s licenses

The ability of “dreamers” living in Arizona to drive could depend on what the Trump administration thinks.

In a brief order Monday, the U.S. Supreme Court asked the Department of Justice for its views on whether those in the Deferred Action for Childhood Arrivals program are legally present in this country.

The court gave no deadline for a response. But the order likely means that the justices won’t decide on the state’s bid to deny licenses until at least October – if not later.

It also means that the more than 21,000 DACA recipients who have been issued licenses following a federal appellate court order will continue to be able to drive in the interim.

The fact that the justices want to hear from the Trump administration is significant.

In 2014, the Department of Justice told the 9th Circuit Court of Appeals that the state’s policy of denying licenses to DACA recipients is contrary to federal law.

Assistant U.S. Attorney General Lindsey Powell told the judges that Arizona has no right to decide that some people the federal government allows to remain in this country are “authorized” to be here and that others are not. She said that as far as the federal government is concerned, all are equal under the law – and all are entitled to the same rights and privileges – including licenses.

“Arizona may not substitute its judgment for the federal government’s when it comes to establishing classifications of alien status,” Powell wrote.

But that brief was filed on behalf of the Obama administration which had adopted DACA in 2012.

That program allows those who were brought here illegally as children to remain if they meet certain other conditions, permission that is good for two years and renewable. They also are issued Employment Authorization Documents entitling them to work.

Now the Department of Justice reports to President Trump. And what he – and the agency – think about the program is unclear.

During the presidential campaign, Trump promised to repeal DACA the first day he was in office.

He did not do that. In fact, in the most recent announcement earlier this month, Trump’s Department of Homeland Security suggested it is in no immediate danger.

“The future of the DACA program continues to be under review with the administration,” the statement reads. “The president has remarked on the need to handle the issue with compassion and with heart.”

But the agency said the statement was meant only to clarify that DACA would not be immediately canceled and “should not be interpreted as bearing any relevance on the long-term future of that program.”

“It’s not surprising that the Supreme Court would like to hear what the federal government would have to say about the case,” said Victor Viramontes, senior attorney with the Mexican American Legal Defense and Educational Fund. But he said the legal analysis of DACA, which remain in effect, as well as the rights of those in the program remain the same.

“The only decisions up to now is what Arizona is doing is illegal,” Viramontes said. “Nothing’s really changed on that.”

Still, he acknowledged that doesn’t mean the current Department of Justice will see things the same.

“It is a new administration and it’s really hard to know exactly what they will say,” Viramontes said.

Former Gov. Jan Brewer issued an executive order in 2012 that directed the state Department of Transportation not to give licenses to DACA recipients.

In that order, Brewer said a 1996 state law says licenses are available only to those whose presence in the country is “authorized by federal law.” She took the position that the DACA program confers no legal presence on those in it but simply says they will not be pursued or deported.

Doug Ducey, who became governor in 2015, has left that order in place. And Attorney General Mark Brnovich has advanced the same legal arguments to the Supreme Court after the 9th Circuit rejected them.

In the interim, following an appellate court order, the state has been issuing licenses to DACA recipients. The last time ADOT updated the figures was in April 2016 when more than 21,000 dreamers had licenses.

Voters get choice on criminal punishment, judge rules

Arizonans are entitled to vote in November on a measure to give judges more discretion in imposing sentences on criminals, according to a new court ruling.

Maricopa County Superior Court Judge Joseph Mikitish, an appointee of former Gov. Jan Brewer, late Friday rejected arguments by Pima County Attorney Barbara LaWall and some crime-victim advocates that the required 100-word description of the measure failed to inform those signing the initiative petition of exactly what it would do. The judge said he found the wording contained nothing that was either fraudulent or created a significant danger of confusion or unfairness, the legal standard by which these statements are measured.

And Mikitish specifically spurned the suggestion that initiative crafters were misleading signers — and would be misleading voters if the measure gets on the November ballot — by saying the additional judicial leeway would apply only to “nondangerous” offenses.

Attorneys for challengers argued that a “reasonable voter” would not understand that the category legally includes things like sex trafficking of a 15-year-old child, conspiracy to commit murder, terrorism, kidnapping and home invasions.

The judge did not dispute that contention. But he said it’s not that simple, saying the term is “open to a wide variety of interpretations.”

“From a layman’s perspective, a ‘dangerous’ offense frankly could apply to almost any crime in the criminal code,” Mikitish wrote. “Conduct is made criminal because it involves the actual or risk of injury, danger, or harm of some person in the community at large.”

Looking at it that way, the judge said, some people might conclude there is no such thing as a “nondangerous offense” while others might conclude it is one that does not involve injury to others.

And there’s something else.

Mikitish said anyone who was unclear about what is and is not included could simply read the actual petition language which, by law, has to be attached to signature sheets. And there, he said, they would have learned that the measure defines “nondangerous” offenses as anything other than first- and second-degree murder, child molestation, rape, and anything defined by the legislature as a dangerous offense.

Nor does Mikitish believe that it matters that the term might seem biased and incomplete. He said the 100-word description does not need to be impartial or provide every detail of every provision.

“A reasonable voter is likely to understand that every proponent of a ballot initiative is attempting to gain his or her support and is likely to highlight the positive aspects of the proposal,” the judge said. “Like in any market, a certain level of puffery must be expected.”

And he said the answer to that is for foes to make their own claims to voters.

The initiative crafted by Arizonans for Second Chances, Rehabilitation and Public Safety would alter current laws on incarceration which date back to 1978 when legislators voted to impose mandatory prison terms for certain crimes. It would allow to deviate “in the interest of justice,” even to the point of suspending sentences and placing people on probation.

It also would amend a 1993 “truth-in-sentencing” law which says criminals must serve at least 85 percent of their term before being eligible for release. This would allow the release after 50 percent of sentence for those serving time for nondangerous offenses who meet other qualifications.

Challengers also charged that the proposal violates the Victims Bill of Rights in the Arizona Constitution because victims may not have the right to be heard when the Department of Corrections, Rehabilitation and Reentry recalculates the earned-release credits of criminals who already have been sentenced.

But Mikitish apparently accepted arguments by the campaign committee that any constitutional arguments can’t be decided unless and until the measure is approved.

There was no immediate response from LaWall who is retiring at the end of the year. But she is likely to seek Arizona Supreme Court review.

Other plaintiffs are:

– Heather Grossman, a survivor of domestic violence who was left paralyzed when she was shot by someone hired by her former husband;

– Beckie Miller, whose son was robbed and murdered in 1991, prior to the “truth in sentencing” provisions; the lawsuit said none of the three perpetrators served more than three years in prison;

– John Gillis, a former police officer, whose 23-year-old daughter was murdered in 1979 by a gang member who killed her as part of his initiation.

Water parks sue to reopen

Golfland Sunsplash in Mesa (Golfland Sunsplash Facebook Page)

The owners of a Mesa water park are suing to be allowed to reopen, claiming the policy of Gov. Doug Ducey that keeps it shuttered is discriminatory.

In a new lawsuit, attorney Joel Sannes says that hotels and resorts have been allowed to keep open their water slides, rivers for tubing, swimming pools and hot tubs despite the COVID-19 pandemic. Ditto private pools at apartment complexes.

But he said the water park at Mesa Golfland has remained closed since late June, with no opportunity to even present evidence to state health officials that it can operate safely. So he wants Maricopa County Superior Court Judge Janice Crawford, an appointee of Gov. Jan Brewer, to declare the governor’s policy to be unconstitutional discrimination, allowing not just his client but the owners of other water parks around the state to once again have visitors.

Separately, Sannes told Capitol Media Services that the opportunities that Ducey and the Department of Health Services unveiled Monday to allow gyms and fitness centers to petition to reopen does not comply with an order by Maricopa County Superior Court Judge Timothy Thomason requiring the state to provide these facilities with “due process.” So now he is asking Thomason to rule that the governor is violating his order.

There was no immediate response from the governor’s office.

All water parks and pools had been closed in March as part of the effort to slow the spread of COVID-19. They were all allowed to reopen in May if they followed certain guidelines.

In late June, however, with a spike in coronavirus cases, the governor reversed course and shuttered many businesses, including water parks. But that order created an exception for “pools operated as part of a public accommodation, such as those at hotels” as long as they enforce certain rules like keeping groups larger than 10 from congregating in or near the pool.

Sannes said the owners even provided the state health department with a safety plan and asked for authority to reopen. But he said that, to date, neither Ducey nor the agency has responded.

In the meantime, Sannes said, other facilities are open.

For example, he said, the JW Marriott Phoenix Desert Ridge Resort & Spa has five pools, a “lazy river,” a waterslide and a children’s splash area. And the Oasis at Arizona Grand Resort has a seven-acre water pool with three water slides, a wave pool, a lazy river, a children’s pool and a 25-person hot tub.

That, he said, isn’t fair.

“It looks to us like the governor’s picked winners and losers,” Sannes said.

“The governor has decided the winners are water parks that are associated with hotels,” he continued. “And the losers are the three stand-alone water parks in Maricopa County.”

Any ruling in favor of Mesa Golfland would likely also affect pools and water parks located elsewhere in the state.

The fight over gyms and fitness centers is at a whole different stage.

Last week Thomason said Ducey had to at least provide a process for these facilities to be able to show they can operate safely.

That resulted in Monday’s order setting out the conditions under which these establishments and others could reopen. But those are based on the level of COVID-19 infection in each county.

There is a separate process for gyms and fitness centers to petition for permission the health department to reopen even if the infection levels have not reached what the health department sets as a trigger. But Sannes dismissed that as not providing any real relief.

“First of all, there’s no form to fill out to ask for the permission to reopen,” he said. “And there’s no timeline for ADHS to respond to an application for permission to reopen.”

But that’s only part of the problem.

If the agency denies the request, it goes to the Office of Administrative Hearings.

Under normal circumstance, he said, that agency would review what is being proposed and determine if it does or does not comply with what’s required.

Only thing is, Sannes said, there is no standard for the hearing officers to use to determine if the agency acted properly in denying the request.

“There’s no criteria,” he said, nor any standard to determine when a gym or fitness center has met the burden of proof. “And there is no guidance for the Office of Administrative Hearings to decide whether or not a particular fitness center should be allowed to reopen.”