Arizona Eagletarian

Arizona Eagletarian

Thursday, May 3, 2012

Pearce giveaway -- It's all about the MEME. UPDATED 4pm MST 5-3-12

The Arizona Republic FINALLY finds its voice, telling the state legislature,

If these Pearce supporters connive at this 11th hour to "reimburse" Pearce, let it be known they are fooling no one. They are using scarce state funds to hand Russell Pearce a pay package of more than a quarter million dollars for the inconvenience of having experienced a recall, and to help finance his return to office when he runs again this fall.
That includes making changes to the law that allow him to get a payoff somewhere down the line.
That, simply, is an outrage that cannot stand.
The state Legislature declined yesterday to consider a tiny increase in funds for the developmentally disabled.
The Legislature decided yesterday to leave over 100,000 poor kids without access to health care, languishing instead on waiting lists.
The Legislature yesterday left highways untended, needed schools unbuilt, and uncounted other state services grievously unfunded.
Don't you dare, in the security of your back rooms, use the confusion of the 11th hour of the legislative session to cut a check to Russell Pearce.
Don't you dare.
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But they dared. And they will continue to dare. Will they succeed? I don't know. But I am certain they will continue to try.

How and why do they think they can get away with it?

It's ALL ABOUT THE MEME.

Tuesday evening, after reading a tweet posted by Tucson attorney and former Assistant Attorney General Vince Rabago, I reviewed several local news stories on the issue (and posted my findings to this blog). There was a common thread to all of them. First, proponents of the $261,000 gift to the LOSER of last fall's LD18 Senate recall election all spoke to reporters as if the Arizona Constitution MANDATES or commands the legislature reimburse Pearce for the expenses he reported for his failed campaign.

Second, NONE of the veteran legislative reporters even questioned that assumption.

THAT should be troubling to anyone with any concern for how laws and public policy decisions are made at the state capitol. Freedom of the press has, unequivocally been co-opted by "market forces." If the people who pay Howie Fischer and Jim Small and Luigi del Puerto were to demand that they ask the right questions and challenge those to whom the power of Arizona voters has been delegated, this would never have happened.

But I must digress, for the moment.

Those news stories contained this simple message expressed invariably in similar words in each,
 the Arizona Constitution requires the Legislature to reimburse the “reasonable special election campaign expenses” of any recalled public official.
...he was approached by several Republicans concerned about a constitutional provision requiring recalled elected officials to be reimbursed. 
Montenegro said that means lawmakers have a constitutional responsibility to ensure Pearce has his expenses reimbursed.
 Sen. Steve Smith, R-Maricopa. We’re constitutionally bound to do it.” 
And from Laurie Roberts' blog at azcentral:
In a discussion with readers on my Facebook page, Rep. Brenda Barton, R-Safford, wrote that the state is obligated to pay Pearce. 

And then Wednesday evening, Facebook friend, Robert Warrington shared the following message he had received from state Sen. Judy (NO SUSTAINABILITY) Burges,
On Wed, May 2, 2012 at 9:54 PM, Judy M. Burges wrote:
Robert: Watch the committee hearing held today and you will hear what the Constitution says about your issue.

Also from the Arizona Republic on Wednesday,
An Arizona legislative committee on Wednesday passed an amendment that sets up a framework for recalled Sen. Russell Pearce to seek repayment for costs incurred during the recall election. If Pearce requests the money, it could lead to the state writing a check for about $261,000 directly to the former Mesa lawmaker.
The bill still needs the final approval of both the House and Senate, and it's unclear if it has the votes. It is expected to be on today's agenda in both chambers.
Perhaps the biggest Russell Pearce sycophant at the capitol, Sen. Andy Biggs(hot), had this to say,

Biggs said the amendment applies not only to Pearce but to any state, county or local official who faces a recall election.
He said the definition of reasonable campaign expenses should be left to the governing body considering the request. An applicant would have to file a list of campaign expenses.
"But for that recall election, would that officer have had to expend special election campaign money, whether he had to raise it or get it from somewhere else?" he asked.
Biggs took issue with Lujan's argument that this effort was being done quickly and quietly at the end of the session. "This has been debated in the halls of this body, in the press and in the public for quite some time," he said. "And if you're concerned about taxpayer dollars, maybe the cost of the election ought to be considered."
Pearce has said he doesn't know if he will seek reimbursement or not.

The fact of the matter is that there is NO SUCH MANDATE. And even though the Republic's editorial was unequivocal in its judgment of this whole situation, none of them, not even Laurie Roberts who has been very clear about her opposition to the payout, have even addressed the issue of the MEME.

None of them has questioned the assumption or presumption that the legislature has a duty to provide the funds. None of them appears to have even recognized that the Pearce sycophants are refusing to listen or consider anything other than what they are proclaiming to be their duty.

They will continue to defy sound legal reasoning. They will continue to defy rational approaches to this matter. They will continue to use the MEME to thumb their noses at the voters they are supposed to represent (Talk to the hand!). And they will continue to use the meme to convince the Tea Partisans that they are justified in this unconscionable act.







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Now, about that ridiculous claim:

Vince Rabago has practiced state and federal constitutional law for nearly twenty years. He scoffed at the effort to reimburse Russell Pearce.


Any Russell Pearce cash-back scheme is clearly unconstitutional and illegal. Simply put, the Arizona Constitution does not intend to pay back someone who gets ousted in a recall. The only plausible interpretation of the actual language used in the Arizona Constitution is that it provides for reimbursement of an incumbent official who wins a recall election. The language in Article VIII, Section 6 of the Constitution, provides for enacting a "provision for payment by the public treasury of the reasonable special election campaign expenses of such officer." But under Arizona law, an 'officer' -- in the context of elected officials -- is clearly defined as 'the incumbent of any office.' Because Russell Pearce did not win the recall election, he is not "the incumbent of any office" and therefore cannot be legally reimbursed under the Constitution

Rabago continued, "The Constitution thus allows for payment of reasonable campaign expenses of an incumbent who wins a recall, but the Constitution does not permit or require reimbursement of a former officer. And, you can only know what reasonable 'expenses' are after an election occurs, which further supports the clear meaning of this provision. After the dust of the recall election settles, such 'officer'" ('incumbent') can be reimbursed. This is also the only commonsense interpretation of the Arizona Constitution because it makes sense to reimburse an official who remains the incumbent and was unfairly forced to spend money to defend their seat in a recall election. A recalled officer who maintains the trust of voters and wins the recall should not have to pay for the unnecessary recall campaign because the voters have effectively decided that the officer should not have been recalled in the first place. But it makes absolutely no sense to give a cash rebate to a bad politician who gets kicked out of office by the voters. It is as simple as that. (emphasis added)

In short, the effort to pay Russell Pearce is unconstitutional and illegal.
The Arizona Constitution has the following relevant language:
"No recall petition shall be circulated against any officer until he shall have held his office for a period of six months.... (Art. VIII, Section 5.)
Article VIII, Section 6, then states: "The general election laws shall apply to recall elections in so far as applicable. Laws necessary to facilitate the operation of the provisions of this article shall be enacted, including provision for payment by the public treasury of the reasonable special election campaign expenses of such officer." (Art. VIII, Sec. 6.)
"Such officer." So, what does officer mean?
"Officer" is clearly defined under Arizona law as the incumbent of any office. A.R.S. § 38-101(3). Because Russell Pearce did not win the recall, he is not the incumbent and cannot be legally reimbursed.

The Arizona Constitution thus provides for the payment of reasonable campaign expenses of "such officer" (i.e., "such incumbent"). The Constitution does not say reimbursement of "such former officer." 
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Until someone gets their attention, and I'm not sure even the Republic's editorial will do that, the Russell Pearce sycophants in the Arizona Legislature will continue to act as if they are completely justified in this foolish endeavor.

Let's not even get started on what things those "honorable" representatives of the voters REALLY have a duty to see get funded... I'm confident many readers can come up with a substantial list of things this bunch of fools has refused to fund despite constitutional mandate to the contrary.

UPDATE 4pm MST 5-3-12

Reportedly, the Arizona Legislature is preparing to end the 2012 regular session (Sine Die) this afternoon or this evening. And to the end, Pearce sycophant Sen. Steve Smith clings to the meme.
Pearce backer Sen. Steve Smith said the bill was not advanced "because people like him, to give him money," but rather because "we have to do it."  
The Arizona Republic even repeated the meme without questioning it in a story posted a few minutes before noon.
The Arizona Constitution includes a provision "for payment by the public treasury of the reasonable special election campaign expenses" of an official in a recall election. It requires the Legislature to set up a process, which supporters of the effort said was their intent with Senate Bill 1449.
However, despite their protestations to the contrary, SB1449 as amended by the conference committee yesterday, specifically was for Russell Pearce.

Also from the Republic story:
"It is suffering a slow death," said Sen. Steve Smith, R-Maricopa, who was among a handful of Republican lawmakers behind the effort. "It's just unfortunate. This wasn't about Russell Pearce. It didn't give him any money. It did absolutely nothing other than set a framework." (emphasis added)
But here is what the bill, as amended says:


A. THE OFFICER AGAINST WHOM A RECALL PETITION HAS BEEN FILED AND WHO DOES NOT OFFER HIS RESIGNATION WITHIN FIVE DAYS AFTER THE PETITION IS FILED, SHALL BE PAID HIS REASONABLE SPECIAL ELECTION CAMPAIGN EXPENSES FROM THE GENERAL FUND OF THE STATE, COUNTY OR MUNICIPALITY AS DETERMINED BY THE
LEGISLATURE FOR A STATE OFFICER, OR AS DETERMINED BY THE APPROPRIATE LOCAL GOVERNING BODY FOR COUNTY OR OTHER LOCAL OFFICERS.


B. THE AMOUNT SHALL BE PAID AFTER THE SPECIAL ELECTION HAS BEEN HELD AND AFTER THE OFFICER WHO WAS SUBJECT TO THE RECALL ELECTION SUBMITS A VERIFIED ITEMIZED ACCOUNT OF CAMPAIGN EXPENSES TO THE APPROPRIATE GOVERNING BODY. THE VERIFIED ITEMIZED ACCOUNT SHALL BE FILED WITHIN TWO YEARS AFTER THE SPECIAL ELECTION. IF THE ELECTIVE OFFICER IS A STATE OFFICER AND THE VERIFIED ITEMIZED ACCOUNT OR ANY PART OF THE ACCOUNT IS APPROVED BY THE LEGISLATURE, THE LEGISLATURE SHALL CERTIFY THE ACCOUNT AND DELIVER IT TO THE DEPARTMENT OF ADMINISTRATION FOR SUBMITTAL TO THE STATE TREASURER AND IT SHALL BE PAID AS OTHER CLAIMS AGAINST THE STATE ARE PAID. FOR OTHER ELECTIVE OFFICERS, THE GOVERNING BODY SHALL CERTIFY THE AMOUNT AND SUBMIT THE ACCOUNT TO THE APPROPRIATE FISCAL OFFICER FOR PAYMENT.

(new language added to Arizona Revised Statutes in legislation is always capitalized in the bill).

Sec. 3. Retroactivity
Section 19-218, Arizona Revised Statutes, as added by this act, applies retroactively to expenses incurred for a recall election held in November, 2011
The claim made by Pearce sycophant Steve Smith is partly true and partly false. This would indeed only have established a framework. And there are other elected officials to whom these provisions potentially would apply (recall efforts are now underway for school board members in Tucson, and council members in various cities and towns in Arizona have been subject to recall elections). But adding the retroactivity clause makes it very clear that Russell Pearce is the person for whom they want to enact this provision.

Nevertheless, let them adjourn the session without any more mischief. 




4 comments:

  1. This is pretty clear and leaves no wiggle room unless you are an arrogant and ignorant individual,which most of those supporting this action. Clearly it is not constitutional.

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  2. The big question is: Should Governor Brewer sign this "kickback" into law, who would have standing to sue to block it?

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  3. That's a good question, to which I don't have a good answer. I could speculate that any Arizona taxpayer, but I'm not sure alone that would be enough to have a court believe a person has standing.

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  4. @Steve,

    Yeah, the US Supreme Court seems to be closing just about every avenue to the courts via "standing" including the avenue of being a "taxpayer". That's why I was wondering.

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