Judge can’t tell lawmakers how much money to give schools, attorney says

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An attorney for the state is telling a judge she has no legal right to tell the Legislature it isn’t providing enough money for school construction and repair.

In new court filings, Brett Johnson acknowledged that the Arizona Supreme Court ruled more than two decades ago that the state has an obligation to ensure that schools meet minimum adequacy standards for everything from building safety to equipment needs. The justices said at the time that it was unconstitutional to put that burden solely on local taxpayers, as it created gross disparities and left children in some schools without adequate education opportunities.

But Johnson told Maricopa County Superior Court Judge Connie Contes that she is powerless to rule on a claim by school districts that the amount of money now being provided by the state is inadequate.

“The question of how much should be appropriated for any particular item in a given year is clearly committed by our Constitution to those acting in a legislative capacity,” he said.

That theme was echoed in filings by attorney Bill Richards who separately represents House Speaker J.D. Mesnard and Senate President Steve Yarbrough.

Richards told Contes that what the school districts want would “improperly intrude on matters preserved to the discretion of the legislative branch.” And he said it would put the judge in the position of deciding what he called “political questions regarding the degree and nature of funding provided for or related to public school capital facilities.”

But Mary O’Grady, who represents the districts that sued earlier this year, said it is clearly within the power of courts to determine if lawmakers are meeting their constitutional obligations to provide “adequate” facilities for public education.

More to the point, she said judges are empowered to tell them to fix it. At that point it would be up to legislators to determine how to do that, though that decision could lead to further litigation if challengers remain dissatisfied.

But the case is clearly about money.

Tim Hogan, another attorney representing challengers, says lawmakers are shorting schools each year for the capital funds they need to the tune of about $300 million. And he said the cumulative loss to schools from the failure to properly fund capital needs is now close to $2 billion.

The lawsuit traces back to 1994.

Prior to then, construction of new schools and needed repairs were presumed to be solely the responsibility of local districts. But in a historic ruling that year, the high court said that created gross inequities — and left some schools and the children there without adequate facilities.

“Some districts have schoolhouses that are unsafe, unhealthy, and in violation of building, fire and safety codes,” the justices said, with schools without libraries, laboratories or gymnasiums. “But in other districts, there are schools with indoor swimming pools, a domed stadium, science laboratories, television studios, well-stocked libraries, satellite dishes, and extensive computer systems.”

All that, they said, runs afoul of a state constitutional obligation to maintain a “general and uniform” school system.

After several more rulings, lawmakers eventually created the School Facilities Board to come up with minimum guidelines and created a system to both finance new schools as needed and provide $200 million a year for upkeep.

Only thing is, lawmakers have not fully funded that formula for years.

The result, according to challengers, has been a shortage of funds to pay not only for repairs but for other needs ranging from school buses to textbooks. And that forces the districts to use locally raised funds — assuming voters are willing to go along — to pay for the needs that the Supreme Court concluded are the state’s responsibility.

O’Grady said Johnson’s claim that Contes cannot hear the challenge is based on a flawed reading of what is in the lawsuit.

She said what the Supreme Court ruled in 1994 was that the state has to have standards for what constitutes adequate classrooms.

“And you’ve got to have funding to meet the standards,” she said. O’Grady said she is seeking a ruling that the money being provided does not meet the constitutional — and court-ordered — requirement to meet those standards and ensure educational opportunities.

That issue, she said, is “absolutely within the reach of the courts.” And O’Grady said if Contes agrees with challengers that the funding is inadequate, “then it kicks back to the Legislature for a remedy,” meaning the courts not infringing on legislative prerogatives — assuming whatever they decide makes the funding scheme constitutional.

Questions of the power of judges aside, Johnson also contends that the districts themselves have no right to even be in court in the first place.

He said only those who have suffered a “particularized” injury to themselves have a right to assert any claim that the money they are getting is constitutionally inadequate. Instead, Johnson said, the lawsuit contends the overall amount of dollars available to fund new buildings statewide and maintain the ones that already exist is inadequate.

And Johnson said there is no evidence that the districts that filed suit had actually asked for cash from the School Facilities Board, which evaluates needs and distributes money. He said only if they are first turned down might they have a legal claim.

O’Grady brushed those claims aside.

“Our issues are not about funding for particular projects,” she said. She agreed that such a request  would go to the board.

“Our lawsuit is about the structure of the system overall and whether the structure of the system overall satisfies constitutional requirements,” O’Grady continued. “This isn’t about one district needing money for a specific project.

Contes is set to hear arguments in December.

Judge won’t delay decision on school funding

education-620A judge won’t delay deciding whether the state is violating constitutional requirements to adequately fund school capital needs while lawmakers decide what – if anything – they are going to do about the problem.

In a brief order made public Wednesday, Maricopa County Superior Court Judge Daniel Martin rejected a bid by attorneys for both the state and legislative leaders to postpone any action on the lawsuit filed last year by various school districts and other groups. In essence, the judge agreed with challengers that there’s no evidence that lawmakers will approve a funding plan offered by Gov. Doug Ducey, much less one that actually resolves the issue.

But Martin’s order does not mean that those contesting the state’s funding formula are going to win their case — or even that they’re going to get to make it. The judge is still weighing arguments by defendants that there is no legal basis for the lawsuit and he should toss it out.

Attorney Brett Johnson who represents the state contends that the amount of money put into schools is a “political question” beyond the reach of the courts.

And Bill Richards, speaking on behalf of Senate President Steve Yarbrough and House Speaker J.D. Mesnard, argued that there is no constitutional requirement for the state to fund some of the expenses that the challengers say are needed to maintain an adequate school system. Richards also said the question of what should be the minimum guidelines for these items is within the “exclusive discretion of the Legislature.”

At the heart of the battle is the contention by the plaintiffs that the state is not living up to its obligation to build and repair schools and to pay for other capital needs like buses and equipment.

There are multiple Arizona Supreme Court rulings which have said these burdens cannot be borne solely by local taxpayers. And in their wake, state lawmakers did set up a system to have the state take over that role.

But funding for that was cut sharply during the recession. In filing suit last year, attorney Tim Hogan pegged the unfunded needs in the neighborhood of $300 million a year; the lost dollars, he said, exceed $1 billion.

The move to put the case on the back burner came after Ducey in January announced a plan to eventually restore full funding for the “district additional assistance” account to bring it back to the $371 million that it should be according to state law. This account provides money for things like textbooks, computers, school buses and some capital funding.

Ducey also proposed to put $88 million into the budget for new school construction and add another $35.2 million to a fund available to schools for repairs, bringing that total to $51.8 million.

At a hearing last month, Johnson told Martin that the governor and the Legislature are working “very diligently” to resolve the issues. He said the “experts” in this area should be given the opportunity to deal with the question rather than having it decided by the courts.

“There is a solution on the table,” he said.

But Mary O’Grady, who also represents the plaintiffs, told Martin that what Ducey offered is just a proposal, with no guarantee that the Republican-controlled Legislature will accede to the governor’s requests.

Anyway, she said, even if lawmakers give Ducey everything he wants, that still won’t resolve the legal issues.

For example, she said, rather than funding new schools as they are needed due to student growth, the state has set up a system where it only provides the cash after a school already exceeds capacity, something O’Grady said violates the constitutional mandate.

And she sniffed at the $51.8 million offer for repairs, saying the formula used to compute what’s necessary requires $260 million.

“The governor’s current proposal comes nowhere close to this amount, and there is no basis for concluding that the amounts proposed ensure that schools meet state standards,” O’Grady argued.

Beyond that, she said Ducey’s plan does not provide dedicated funding for “soft capital” needs like textbooks, technology and school buses.

Ducey’s offer did have one effect: The board of the Arizona Association of School Business Officials voted to withdraw as a plaintiff in the case. While saying that “critical” needs remain, the board, in a prepared statement, said Ducey’s plan, if enacted, “brings immediate relief to our school districts versus waiting for the outcome of the lawsuit.”

That, however, still leaves the other plaintiffs, including the Arizona School Boards Association, the Arizona Education Association, the Crane, Elfrida and Glendale elementary school districts and the Chino Valley Unified School District.

State asks judge to dismiss legal challenge to school finance scheme

Saying challengers have no right to sue, lawyers for the state want a judge to throw out a challenge to the state’s school funding scheme.

In legal papers filed in Maricopa County Superior Court, attorney Brett Johnson does not directly address the contention by education officials, taxpayers and others that the lack of cash from the governor and Legislature has left schools with hundreds of millions of dollars of unmet construction, maintenance and equipment needs.

Instead, Johnson is telling Judge Connie Contes she has no authority to decide if the state is providing enough money. He said whatever they decide to provide in cash is a “political question” beyond the powers of the courts.

“Whether and how much money can be paid out of the state treasury is clearly committed by our constitution to those acting in a legislative capacity,” he wrote.

If nothing else, Johnson said challengers can’t ask Contes to invalidate the school funding formula because there’s no evidence they actually made a funding request of the School Facilities Board which is in charge of doling out money,

Mary O'Grady
Mary O’Grady

But attorney Mary O’Grady, who represents those who sued earlier this year, said that the Arizona Supreme Court ruled as far back as 1994 that the capital funding scheme in place at that time violated the requirements of the Arizona Constitution for the state to provide a “general and uniform” school system. The high court reaffirmed that in two subsequent decisions.

More to the point, she said, the justices concluded that courts did have the authority to make that decision.

O’Grady also disputes that the challengers have to first be denied the funding by the School Facilities before they can ask Contes to intercede. Anyway, she said, it’s not like that would do any good, pointing out that the board has no authority to actually appropriate needed cash.

“It simply distributes the funds the Legislature has given it,” O’Grady wrote, an amount that fell “far below” what’s needed. In fact, the total appropriation this year was less than $16 million, compared with the approximately $300 million a year that challengers say is needed.

Attorney Tim Hogan, who also represents those who sued, put it another way.

“The School Facilities Board does not have the power or authority to deal with the shortcomings of the school finance system,” he said.

Surrounded by school officials and taxpayers, attorney Tim Hogan details Monday the elements of a lawsuit charging the state is not living up to its constitutional obligations to properly fund school construction and repairs. (Capitol Media Services photo by Howard Fischer
Surrounded by school officials and taxpayers, attorney Tim Hogan details May 1 the elements of a lawsuit charging the state is not living up to its constitutional obligations to properly fund school construction and repairs. (Capitol Media Services photo by Howard Fischer

What that means, Hogan said, is that anything the board does means nothing unless the Legislature and governor actually put more money into the system, something he charges they have so far refused to do. And he said their refusal to act does not excuse state officials from meeting what the Arizona Supreme Court has previously ruled is the state’s obligation to ensure “minimally adequate facilities in all of Arizona’s schools.”

And there’s something else. O’Grady said even if the School Facilities Board agrees more money is needed for construction and maintenance — and even if lawmakers were to give them those dollars — that solves only part of the problem.

“The School Facilities Board distributes no funding at all for ‘soft capital’ needs such as school buses, technology and textbooks,” she wrote.

The filings come as state officials hope to avoid yet another court ruling finding that they are not meeting their constitutional obligations and must pony up more cash.

In filing suit earlier this year, challengers charge the state has failed to provide the money needed to ensure that public school buildings meet minimum standards for everything from having enough classrooms to providing money for equipment. The result, they contend, is school boards are left with an unacceptable choice: divert money from other needs or allow the inadequate standards to persist.

There is a legal basis for the argument: There are three separate Arizona Supreme Court rulings dating as far back as 1994 that spell out the state’s responsibility for adequate funding of buildings and facilities.

Lawmakers eventually approved the Students FIRST program — short for Fair and Immediate Resources for Students Today — which was supposed to ensure that new schools were built when needed and existing ones were kept in repair. That included a one-time $1.3 billion expenditure to get buildings up to state standards with an additional $200 million earmarked for things like textbooks and buses. But O’Grady said state lawmakers and the governor have ignored the prior Supreme Court rulings and effectively “dismantled” Students FIRST.

“As a result, today’s capital funding system is similar to, and perhaps worse than, the system declared unconstitutional,” she said.

Johnson, in seeking to get the lawsuit dismissed, is arguing to Contes that the prior Supreme Court rulings merely required the state to establish minimum adequate standards. He contends there is nothing requiring that those guidelines to be updated.

O’Grady, however, said that argument is undermined by the constitutional language that requires the Legislature to both establish and maintain a general and uniform school system.

“The state fails to ‘maintain’ an adequate school system if it allows its standards (and the associated funding) to become obsolete,” O’Grady wrote. She said that’s like pretending that buses manufactured in 1978 are constitutionally adequate “or that students can be educated for jobs in a modern economy with one computer for every eight students.”






State glitch gives some schools too much federal money, underfunds others

Hundreds of charter schools and traditional school districts in Arizona have been receiving more federal funding for low-income students than they were entitled to while others were left with far less for at least the past four fiscal years.

Those dollars, known as Title I funds, are intended to be used to fuel academic programs for the state’s most economically disadvantaged children.

School Superintendent John Huppenthal (Photo by Ryan Cook/RJ Cook Photography)
Former Superintendent John Huppenthal (Photo by Ryan Cook/RJ Cook Photography)

Errors identified in the Arizona Department of Education’s handling of Title I allocations began in fiscal year 2014 under former Superintendent of Public Instruction John Huppenthal, and carried over into fiscal years 2015, 2016 and 2017.

The issue was initially believed to be limited to just 23 school districts and charter schools, to the tune of about $435,000 for fiscal-year 2014, according to an audit by the U.S. Department of Education.

That’s what the state agency shared with districts and charters when they were first alerted in April. At the time, they only knew part of the story.

There are 200-plus traditional school districts with some 1,700 schools in Arizona and more than 400 charter schools.

A third-party auditor, Afton Partners, hired by the Arizona Department of Education, found the misallocations had actually reached more than 400 charters and school districts that receive Title I funds, and over-allocated dollars reached into the millions.

And while that much is now clear, the affected districts and charters have been left to wonder just how much they might have been over- or underpaid.

The beginning

According to Afton, the over-allocated funds totaled about $33.6 million when schools that have since closed are excluded. For schools that are still in existence, the figure is $31.8 million.

But according to the department, the net total is closer to $9 million because the School Improvement Fund was also shorted. That $9 million figure is what is left when you take the total over-allocated funds minus the more than $20 million by which this fund was shorted.

School improvement funds are Title I dollars set aside for the lowest performing schools, the bottom 5 percent.

Rather than going through the School Improvement Fund, as is normally the case, Stefan Swiat, spokesman for the state Department of Education, said that money went directly to the schools instead.

Still, 10 school districts and charters were identified by Afton as having received more than $1 million in over-allocations.

On October 13, the department issued a press release announcing that an audit by the U.S. Department of Education and the state auditor general found an unspecified number of schools received the wrong amount of Title I funding. Before that statement, this finding had not been shared publicly.

The fiscal year 2018 allocations, which were released on October 19, are believed to be accurate after the department worked with Afton to update its procedures and replace “the parties responsible.”

Afton also identified and assisted in correcting calculation errors like the incorrect order of mathematical operations and policy violations like improper records retention.

In response to a public records request, the department sent the Arizona Capitol Times a spreadsheet comparing the original Title I allocations to Afton’s recalculations of the funds each school should have received in the past.

[The spreadsheet with Afton’s recalculations can be downloaded HERE.]

But those numbers have not yet been verified by the U.S. Department of Education, nor has the department’s “formal response” been sent to the feds, Swiat said.

He said more details would come in the next 30 days, but according to the press release “the misallocation may result in how future funds are allocated.”

That could mean reductions in future allocations to make up for excess funds beginning in fiscal year 2019.

Tim Hogan (Photo by Rachel Leingang, Arizona Capitol Times)
Tim Hogan (Photo by Rachel Leingang, Arizona Capitol Times)

But Tim Hogan, executive director of the Arizona Center for Law in the Public Interest, said the idea of recouping the over-allocations makes no sense.

“You’re going to penalize today’s kids because you overfunded yesterday’s kids?” he said. “Is that what they’ve got in mind?”

Current students, he said, are still entitled to federal dollars, and if the department does not meet that obligation, it could leave itself open to litigation.

Hogan said he could see the same logic applied to underfunded schools, though that could be more difficult. Those schools would first need to take a closer look at the impact the shortage had on their budgets.

If the impact to a district or charter carried forward in a noticeable way, that could be grounds for legal action.

But the possibility of lawsuits did not concern Swiat.

He said “leadership feels very optimistic about how this will turn out,” and the department will work with the feds to find the path of “least disruption” to the school districts and charters.

What exactly that means for each school may not be clear until the spring.

Bearer of bad news

The spreadsheet provided to the Capitol Times was the first look at the dollar difference, though Swiat said it was a draft and subject to change.

In an email, Swiat said Afton’s calculations have not yet been shared with affected schools.

Rather, he said the department has opted to share only verified numbers after working with the feds to determine exactly how they will be affected.

That reasoning did not sit well with Adrian Ruiz, executive director of Espiritu Community Development Corp., which operates charter schools in Maricopa County.

Adrian Ruiz
Adrian Ruiz

Ruiz was “dumbfounded” to learn that Afton estimated Espiritu had been shorted about $630,000 in those four fiscal years.

Epiritu is actually found twice in the spreadsheet; the second entry reflected an over-allocation of about $12,000.

Ruiz said he would have preferred waiting for all of the numbers to be finalized with the U.S. Department of Education before receiving the fiscal year 2018 amounts. Now, knowing prior years’ recalculations are still in question, he wondered whether the 2018 funds would turn out to be wrong, too.

“If there’s a level of confidence that you release some information, then utilizing the same company, utilizing their same formulas – it’s got to be pretty close,” he said.

Ruiz said the state department had communicated with him and others about the overarching problem, but representatives seemed most concerned with placing blame on the previous administration.

“To be honest, that’s neither here nor there for us,” he said. “That’s an inconsequential fact.”

Ruiz was not alone in his frustration. The Capitol Times was ultimately the bearer of bad news for several other districts whose representatives expressed similar concerns.

Kathy Scott, the grants director for Nogales Unified School District, said the department has been “very lax” about explaining exactly what went wrong and why the release of the fiscal year 2018 allocations was delayed until just last week.

Kathy Scott
Kathy Scott

And she said she was not aware that Afton had estimated her district was over-allocated more than $140,000

“We have to pay that back?” Scott asked.

The uncertain prospect of having to pay that money back is like “having this anvil hanging over your head, kind of like a Bugs Bunny cartoon.”

If the district does face reductions in the future to recoup those dollars, she said that could mean people will lose their jobs.

At a recent meeting of her counterparts, Scott said representatives from at least a dozen other districts were “devastated” by the news of widespread errors.

Scott said she could not repeat some of the things they called out, but the message was clear to her.

“The leadership at Title I right now, the highest leadership, is not held in great respect,” she said. “Look at the situation: A reporter from the Capitol Times had to let me know what our over-allocation was.”

Lara Weidinger, the supervisor of governmental grants for Mesa Unified School District, said she wouldn’t panic until she received more information, as is expected to be presented at a department conference in November.

Her district, the largest in the state, was over-allocated about $2.7 million, the largest over-allocation to any single school district or charter school, according to Afton’s findings.

Weidinger said the 2018 allocation was higher than in previous years, so she had no reason to demand answers yet. But that could soon change depending on how the department chooses to recover the lost cash.

“Hopefully, they know what they’re doing, and they can communicate to us what the plan is going forward and how that is going to impact each district,” she said. “We’re not being squeezed right now… Depending on how that works out, I may be freaking out in a month.”

The prospect of paying back thousands of dollars for any district or charter was daunting.

But for those that were underpaid, the remedy is even more uncertain.

Ruiz of Espiritu said previous students were robbed of the funding that was rightfully theirs, but if that money can be recouped now, at least current students will reap the benefits.

“I don’t think schools understand the magnitude of what was shorted or overpaid,” Ruiz said. “And I think for those schools who were overpaid, they’ll want to know what those consequences are. And for schools like us that were shorted that amount of money – is there going to be a plan in place to essentially provide the money to our schools that was rightfully ours in the first place?

“If they’re going to target and go after these other schools that were overpaid, they should do right by the schools that were shorted.”

Tim Hogan: ‘Trial lawyer’ who shaped education and health care in Arizona

Cap Times Q&A

Attorney Tim Hogan has held elected officials accountable for education funding and health care issues for decades, much to the chagrin of those he has opposed.

Hogan, executive director of the Arizona Center for Law in the Public Interest, said this week that he is leaving the center after 26 years.

Some of Hogan’s most consequential suits include Cave Creek Unified School District v. DeWit, in which the courts ruled that the state had been shortchanging schools on inflation funding. Roosevelt Elementary School District No. 66 v. Bishop changed the way school facilities are funded. His latest lawsuit, filed in May, accuses the state of falling short of the court’s orders in Roosevelt.

Hogan reflected on his time with the center and the legal and political landscape, from lessons learned to work that still needs to be done.

Tim Hogan (Photo by Rachel Leingang, Arizona Capitol Times)
Tim Hogan (Photo by Rachel Leingang, Arizona Capitol Times)

You’ve been a perpetual thorn in the Arizona Legislature’s side for 26 years. What’s the driving force behind it for you personally?

Part of it is just the idea that people with power need to use it responsibly and try to look out for the interests of everybody. I think far too often, our Legislature hasn’t done that. I think they tend to cater to more narrow interests and don’t really pay as much attention to vulnerable populations as they should. I’m convinced – it’s a cliche – but education is the foundation of everything. It really is the great equalizer. I don’t sense that’s been a priority. That really is what builds our society and provides people with the opportunity to make informed choices. For the life of me, I don’t know why that’s not constantly at the top of the legislative agenda.

You’re 65, but you aren’t going to retire. Why not?

I still want to do legal work on cases and issues that I care about. … I just don’t want a regular job.

What do you hope people will remember about your work that you’ve done here?

Truly, I don’t worry about that too much. I don’t look back too much. You can’t do this kind of work and look back. You always have to be looking ahead. We’ve got a record of success in a number of areas that I hope will provide a platform for people in the future to build on, because there’s a lot of work left to be done.

You were derisively called a “trial lawyer” by Gov. Ducey after your latest lawsuit against the state for underfunding school infrastructure. What do you think of that term?

I’m not typically what people think of as a trial lawyer, I guess. I’ve done trials and I’m a lawyer, so I suppose if you put the two of those together… You get these kind of reflexive reactions out of public officials. “Trial lawyers” I think he believes has some bad connotation in the public’s mind – ambulance chasers taking some percentage of recovery from clients, which is absolutely false in my case. I’m a salaried employee of a nonprofit organization. We’ve never filed a case for damages here. We don’t do that. … I told somebody a while back, I’ve been called far worse than a trial lawyer. It just doesn’t even register anymore.

Some education advocates have said they felt duped into supporting Prop. 123 now that the governor and Legislature passed voucher expansion and didn’t do much to help schools otherwise this year. You helped Prop. 123 come together. What do you think of Prop. 123, now that a little time has passed?

There’s a disconnect there in thinking that something that was addressing inflation funding was somehow going to open up all these new vistas. … It was a lawsuit to force the Legislature to do what the law required, which was to provide inflation funding. Inflation funding is meant to maintain your buying power. That’s all. To view it as much more than that, it’s a little wishful thinking. I do think people hoped it would usher in a period where some new initiatives would be considered. They kept calling Prop. 123 the first step. People haven’t seen a second step and they’re disappointed and I get that. That’s ultimately why we had to file this lawsuit last month. We’re going to have to create those steps. It’s clear that there wasn’t any political will to do much more than get Prop. 123 behind them.

How do you decide what kind of issue would make a solid lawsuit?

We look for cases that we can do efficiently, that are going to have an impact on a lot of people, and that we can win. We’re too small for me to do cases I don’t think I can win because it’s a multi-year commitment.

You’ve been filing lawsuits on education issues for decades. Have things gotten better or worse for schools and kids in schools and their families since you started this job?

In many respects, it hasn’t changed too much. … There really hasn’t been any emergence of goal-setting and a plan that would tell us what, as a state, we want. I don’t think we know what we want in terms of education. So that hasn’t changed at all. Our funding level really hasn’t varied too much. I think in recent years, we’ve seen a lesser commitment to public education, certainly the failure to restore the cuts from the recession have hurt. At the same time, we’re putting expanded voucher programs into place. That’s one of the continuing struggles. I think some legislators are far too willing to abandon the public education system for a variety of reasons. We’ve seen more of that. It’s almost as if the people who are proponents are saying and have said, “Public education is a failure.” I don’t know how they measure that. But public education is kind of the foundation of who we are and who we want to be, so this notion that we should just kick it to the curb and privatize a system seems to put us on a path that’s hard to change once you’re on it and I don’t think will lead to much good. … It’s a self-fulfilling prophecy. See, we didn’t give you any money and you’re not doing well.

What will you miss the most about working at the center?

Really, it amounts to the people that you work with in this kind of area. I work with great people. I represent great people. It’s one of the huge benefits of working here, you like everybody. It’s not like I have to take on cases, I get to choose.

Trial on citizen initiative restrictions gets underway

The consultant who has helped with most of the recent initiative drives testified Wednesday a new state law will impair the ability of Arizonans to craft their own laws.

Andrew Chavez told Maricopa County Superior Court Judge Sherry Stephens that it is not unusual for petitions to be challenged for technical errors. He said this could be something as simple as a signer failing to insert a full city and state address to even putting the date of the signature outside the small box where it is supposed to go.

Andrew Chavez
Andrew Chavez

Chavez said until now that trial judges have generally resolved those disputes in favor of allowing the measure to go on the ballot. That’s because the Arizona Supreme Court has concluded that initiative petitions to propose new laws need be only in “substantial compliance” with all election requirements.

But Chavez, whose AZ Petition Partners provides paid circulators, said the mandate approved by the Republican-controlled legislature in HB 2244 will require “strict compliance.” And that, he said, likely will force judges to disqualify petitions with these kinds of technical errors.

What makes that important, he told Stephens, is that will require circulators to gather far more signatures than needed as a “cushion.” And the more signatures a petition needs, the more expensive it will be.

How much?

Chavez said he charged $700,000 to collect signatures last year — under existing law — for a group that put a measure on the ballot to legalize marijuana for recreational use. He said just the change to strict compliance will increase that price tag by up to 30 percent, money he said that many non-profit and volunteer groups do not have.

Sherry Stephens

His testimony is significant because foes of the new law hope it will convince Stephens that lawmakers acted illegally in changing the standard.

Part of the case being presented by their attorneys goes to the legal question of whether the legislature has the right to change the standard.

But they cannot make that case unless they can first prove to Stephens that they have standing to sue because they will be harmed if the change is allowed to take effect as scheduled on Aug. 9. The testimony from Chavez was meant to provide the legal basis for that.

It was not just Chavez who contends the new law will make future initiative drives more difficult.

Sandy Bahr

Sandy Bahr, director of the Grand Canyon Chapter of the Sierra Club, said she already is working with other groups to put two measures on the 2018 or 2020 ballots.

One would make it easier for people to register to vote. The other would outlaw so-called “trophy hunting” of wild animals.

“This would be very harmful to a fundamental right that we have to initiate law,” she said.

“It will make it more difficult, it will make it more expensive.” Bahr said.

She said more initiatives will likely fail.

The Arizona Constitution gives voters the right to propose their own laws. More to the point, attorney Roopali Desai, who is representing challengers to the new law, told Stephens that right exists “independently of the legislature.”

Roopali Desai

“This provision is in the constitution for a very important reason,” she said. “It is in the constitution because the people of Arizona believe their right to legislate is co-equal to that of the legislature, and not subordinate to that of the legislature. And that is the premise our entire case is built on.”

What that means, she said, is that right “should be leniently applied with respect to initiative efforts that are undertaken by the people.”

Desai cited a series of changes in state law that exist because voters approved at the ballot after the legislature refused to act. These include creation of an optional system of public financing for statewide and legislative candidates, having an independent commission draw legislative and congressional districts rather than politicians, and creation of a statewide minimum wage.

She also said that women got the vote in Arizona in 1912 — before it was required by a change in the U.S. Constitution — because of a voter initiative.

Desai said they had to go to the ballot because they were “unpopular at the legislature.” And she pointed out to Stephens that the Voter Protection Act, approved at the ballot in 1998, specifically precludes lawmakers from repealing or making significant changes to the laws voters have enacted.

“It is their agitation with this significant right where they cannot come in and amend or repeal laws that are passed by the people that drove them to pass HB 2224 that essentially limits the right of initiative by making it more difficult to achieve ballot access,” she said.

Attorney David Cantelme, representing GOP legislative leaders defending the law, told Stephens that the claims of harm are exaggerated.

He said all petition organizers and circulators have to do is follow the Arizona laws which spell out what is required to put a measure on the ballot. And Cantelme noted that HB 2244 says petition drives that use the form crafted by the secretary of state’s office are presumed to be valid.

But he also argued that the plaintiffs in this case, including Bahr, have no standing to sue because they cannot show they have been harmed by the new law, as nothing they have proposed for the ballot has been kicked off because of the strict compliance standard.

Desai countered that all the plaintiffs not only have been involved in prior initiative drives but also are weighing future ones, giving them a legitimate — and legal — interest in the new requirement.

Bahr said her organization is working with other challengers like the Arizona Advocacy Network and the Animal Defense League of Arizona. Others challenging the law include the Friends of the Arizona School Boards Association, Planned Parenthood Advocates of Arizona, and Matthew Madonna who was regional president of the American Cancer Society, which was behind a successful ballot effort to ban smoking in public places.

Whatever Stephens rules is unlikely to be the last word: Whichever side loses is expected to seek Arizona Supreme Court review.