Arizona Supreme Court explains why it tossed budget bills

The Republican-controlled Arizona Legislature’s argument that it alone can decide whether laws it enacts pass constitutional muster fell so flat that the Arizona Supreme Court reached back to a landmark 1803 U.S. Supreme Court decision to remind lawmakers that courts do in fact interpret whether laws violate the constitution.

The reference to Marbury v. Madison, where the nation’s highest court established the legal principle of judicial review of legislation, came in a Thursday opinion from the high court. The Supreme Court explained why in November it quickly affirmed a lower court ruling throwing out parts of three budget bills passed last year and invalidating one entire bill that was part of the budget package.

"We reject this untenable proposition," Justice John R. Lopez IV wrote for the unanimous court.

"This case implicates our courts’ core constitutional authority and duty to ensure that the Arizona Constitution is given full force and effect," Lopez wrote. "The responsibility of determining whether the Legislature has followed constitutional mandates that expressly govern its activities is given to the courts — not the Legislature."

It took the high court less than two hours after it heard arguments on Nov. 2 to agree with the lower court that three budget bills packed with a conservative wish list of policy items violated the constitution’s provision that the substance of legislation must be clearly expressed in bill titles. The court also found that a fourth bill making up the budget package violated both the title rule and one that says bills must cover but a single subject.

Provisions in the three bills where only the title rule was violated were blocked as unconstitutional. The fourth bill was declared entirely void for violating the single-subject rule.

The decision will have far-reaching ramifications for the Legislature.

Republicans who control the Senate and House have worked around the requirements for years, slipping policy items into budget bills in order to win support for the whole budget package. Last year, the Legislature was particularly aggressive and packed the 11 bills that make up the budget with a hodgepodge of conservative policy items, some of which had failed as standalone bills.

With the high court’s new ruling, lawmakers will surely be sued and quickly lose if they continue violating the constitutional rules. But nothing prevents them from passing the provisions as separate laws when they return for the 2022 session on Monday.

Among the stricken provisions in the three bills with title issues only were bans on mask or COVID-19 vaccine mandates at K-12 schools and universities, a ban on schools teaching so-called critical race theory and allowing the attorney general to take action against any official or person who organizes to affect school operations.

The Legislature packed the fourth bill with a conservative wish list of unrelated policy items.

"Here, SB 1819 contains fifty-two sections and spans approximately thirty distinct subjects, including matters ranging from dog racing, the lottery, voter registration, election integrity, the Governor’s emergency powers, the Board of Trustees’ duties and powers, the definition of "newspaper," political contributions, management of the state capital museum, and COVID-19," Lopez wrote, all under the title of "budget procedures."

"Our conclusion is inescapable: SB 1819 contains an array of discordant subjects that are not reasonably connected to one general idea, and certainly not to budget procedures," he said. "An act that violates the single subject rule is void in its entirety ..."

The Supreme Court rejected a request from the Legislature to make any ruling on the title and single subject rules only apply to future bills, saying it was not a new rule and lawmakers were well aware of its requirements.

The budget bills were challenged by the Arizona School Boards Association and a coalition of other groups and individuals.

Under Arizona law, the state will have to pay their plaintiff’s legal fees. The judge who issued the initial ruling in September has already ordered the state to pay more than $105,000 in fees. Their lead attorney said Thursday the costs for defending the case at the Supreme Court are likely to be in the same range.

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