Where was Goldwater Institute on this one?

Just this week, the Goldwater Institute sued Gov. Brewer to block the Medicaid restoration bill passed in June -- because, they say, the VOTERS in 1992* said that any tax increase must have the votes of two-thirds of both chambers of the legislature in order to be enacted. And those "selfless advocates" very clearly are ONLY looking out for the best interests of the voters, right?

If that were true, then where was GI in the matter of Dobson et. al. v State of Arizona?

The Dobson lawsuit challenged HB2600 from this year's legislative session. Why is that significant?

In last fall's general election, you and I resoundingly declined to pass Prop 115, a measure put on the ballot by the legislature. It was a brazen effort to politicize Arizona's judicial system. 72.3 percent of voters disapproved of Prop 115 (that was officially 1,446,970 votes against, to 553,132 votes in favor). That is NOT a close vote. That is Decisive with a capital D.

Prop 115 sought to amend the state constitution. It read, in part,

Section 37. A.  Within sixty days from the occurrence of a  any vacancy in the office of a justice or judge of any court of record, except for vacancies occurring in the office of a judge of the superior court or a judge of a court of record inferior to the superior court the supreme court or an intermediate appellate court of record, the commission on appellate court appointments, if the vacancy is in the supreme court or an intermediate appellate court of record, shall submit to the governor the names of not less than three eight persons nominated by it to fill such each vacancy...

B.  Within sixty days from the occurrence of a  any vacancy in the office of a judge of the superior court or a judge of a court of record inferior to the superior court except for vacancies occurring in the office of a judge of the superior court or a judge of a court of record inferior to the superior court in a county having a population of less than two hundred fifty thousand persons according to the most recent United States census, the commission on trial court appointments for the county in which the vacancy occurs shall submit to the governor the names of not less than three eight persons nominated by it to fill such vacancy...

Long story short, this change -- that wasn't made -- would have required the Appellate Courts Commission on Appointments to send the governor EIGHT names instead of three. Further, this language would have made it easier for more extreme ideologues (partisans) to be approved by the screening committee and the names forwarded to the governor.

Why does this matter?

The name Oliver Diaz may ring a bell. A former Mississippi Supreme Court Justice, his story was included in the documentary film Hot Coffee. From the movie's website,

The importance of this story cannot be overstated. The US Chamber of Commerce has spent and continues to spend millions of dollars in every election cycle to buy seats on our state Supreme Courts. The Chamber's attack on Justice Diaz and his wife Jennifer is an example of the lengths large corporations will go to get an advantage in our courts and to destroy the independence of the judiciary, all to promote its pro-business and anti-consumer agenda. 

Anyway, what does this have to do with HB2600? The bill, passed in April and signed by Brewer, sought to add the following language to Arizona Revised Statutes (the legislature cannot amend the state constitution without voter approval):

A.  If the commission on appellate court appointments is required to fill a vacancy in the office of a justice or judge of the supreme court or an intermediate appellate court of record pursuant to article 6, section 37, Constitution of Arizona, the commission shall submit to the governor the names of at least five persons nominated by it to fill the vacancy, except that on a two-thirds vote, the commission may reject an applicant and submit fewer than five names.  If the commission submits five or more nominees, not more than sixty per cent of the nominees shall be from the same political party.  If the commission submits fewer than five nominees, no more than two nominees may be from the same political party.

B.  If the commission on trial court appointments is required to fill a vacancy in the office of a judge of the superior court or a judge of a court of record inferior to the superior court except for vacancies occurring in the office of a judge of the superior court or a judge of a court of record inferior to the superior court in a county having a population of less than two hundred fifty thousand persons pursuant to article 6, section 37, Constitution of Arizona, the commission shall SUBMIT to the governor the names of at least five persons nominated by it to fill the vacancy, except that on a two-thirds vote, the commission may reject an applicant and submit fewer than five names.  If the commission submits five or more nominees, not more than sixty per cent of the nominees shall be from the same political party.  If the commission submits fewer than five nominees, no more than two nominees may be from the same political party. 

C.  The voting records of all members of the commission on appellate court appointments and the commission on trial court appointments shall be recorded in the minutes and made public.  A voting record shall include how each individual commissioner voted. 

Bottom line in HB2600 is that it increases the number of names that are to be sent to the governor to fill a judicial vacancy and it opens the door to extreme partisans. HB2600 was an attempt to move in the same direction as Prop 115 but do so in smaller steps, incrementally. The idea is that if they succeed with this, they would introduce legislation the following year to push the limits even farther.

From the Arizona Supreme Court's Dobson opinion:

By increasing the number of nominees the Commission must submit, H.B. 2600 simultaneously increases the governor’s discretion and narrows the commissioners’ constitutionally granted discretion to nominate no more than the three candidates whom they determine best meet the constitutionally mandated selection criteria.

Subsection C is also a kicker. Publicizing the voting record of all members of the screening committee is ALL about putting pressure on commissioners to appoint those extreme partisans. Don't think for a moment that this could go either for the Right or the Left. This is ONLY about the sustained assault that has been going on for decades against the individual rights of Americans, in favor of the corporate plutocracy, and regarding socially conservative issues (civil rights for LGBT citizens, womens' health, etc) the encroaching theocracy. Think Center for Arizona Policy.

The legislature thought they would pull a smart one on the courts by including a severability clause in HB2600.

If a provision of this act or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the act that can be given effect without the invalid provision or application, and to this end the provisions of this act are severable.

The hope was that even if the court struck down the provision to increase the governor's discretion and decrease the commission's, that they could still demand that the voting records of individual members of the Appellate Court Commission be recorded and publicized. The Supreme Court would have none of that.

Section 12-3151(C), which requires the commissions to maintain individual voting records for each commissioner, also is not severable because it conflicts with the constitution’s provisions regarding the commissions’ rules of procedure. See Ariz. Const. art. 6, §§ 36(E), 41(K).

When questioned by the Associated Press the primary sponsor, state Rep. Justin Pierce (R-Mesa) claimed,

...unlike Proposition 115, which he called a wholesale overhaul of the commission, his law touched only on one small part of its job and wasn’t particularly controversial.

He went on to say,

“Like many laws that we pass, there are multiple viewpoints on what the law means and whether it’s constitutional,” Pierce said. “This is one where I believe it was constitutional, and many had the same legal opinion. The Supreme Court disagreed, and obviously I disagree with their decision but I respect it.”

This is how ALEC-owned Republican lawmakers all over the country get away with plundering the rights of everyday citizens. Reporters don't challenge them with particularly tough questions. And to the degree that the general public doesn't know about what's in documentary films like Hot Coffee, nobody is the wiser. The plain and simple truth is that Justin Pierce (Corporation Commissioner Gary Pierce's son, by the way) is simply executing a corporate legislative agenda to stealthily chip away at consumer and civil protections in both the US and Arizona Constitutions.

As to the question of where the Goldwater Institute was on this lawsuit, do you think they wanted anything to do with it? Come on, do they even give two hoots about you and me? They are ALL about advocating for those who fund them. Think ALEC. Think the US Chamber of Commerce.

Then think about supporting the American Anti-Corruption Act.

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*Note: Prop 108 language includes this,

"(C) This section does not apply to: ... 2. Fees and assessments that are authorized by statute, but are not prescribed by formula, amount or limit, and are set by a state officer or agency. "

In other words, the fees the legislature authorized AHCCCS to assess in order to leverage the federal funding for the Medicaid restoration. All of which plainly contradicts claims Greedwater Institute made that they are looking out for the voters.

So, it appears that entire lawsuit will boil down to GI trying to convince the judicial branch that the fee imposed by the Medicaid restoration bill (see pages 5 and 6 of this fact sheet) is not really a fee. This (Prop 108) language, by the way, is in the Arizona Constitution, Article IX, Section 22.