The lawsuit asks a Maricopa County Superior Court judge in essence to void a 2013 law which declares that only the state can regulate employee benefits, including compensation. That statute spells out that things like wages are “not subject to further regulation by a city, town or other political subdivision of this state.”In other words, the legislature illegally preempted municipalities from enacting a higher minimum wage than that mandated by Arizona law.
In a nutshell, Arizona voters, in 2006, in the general election, approved Prop 202 by a nearly two to one, 65.4 percent to 34.6 percent. Prop 202, in pertinent part, adds section 23-364 to Arizona Revised Statutes. 23-364 I. (as added by Prop 202) (in part) states,
THE LEGISLATURE MAY BY STATUTE RAISE THE MINIMUM WAGE ESTABLISHED UNDER THIS ARTICLE, EXTEND COVERAGE, OR INCREASE PENALTIES. A COUNTY, CITY, OR TOWN MAY BY ORDINANCE REGULATE MINIMUM WAGES AND BENEFITS WITHIN ITS GEOGRAPHIC BOUNDARIES BUT MAY NOT PROVIDE FOR A MINIMUM WAGE LOWER THAN THAT PRESCRIBED IN THIS ARTICLE.But in 2013, the legislature, in a narcissistic act, and in violation of the 1998 voter-approved Voter Protection Act passed HB2280 and Brewer signed it into law. The bill added ARS § 23-204 A., which states (in full),
The regulation of employee benefits, including compensation, paid and unpaid leave and other absences, meal breaks and rest periods, is of statewide concern. The regulation of employee benefits pursuant to this chapter and federal law is not subject to further regulation by a city, town or other political subdivision of this state.The legislature probably would not have even tried to get away with this blatant violation of the Voter Protection Act if Prop 202 had included one additional provision, namely to strike the previously added 23-362 from ARS. That version (added by Laws 1997, chapter 51) states,
A. The legislature declares that the establishment of a uniform minimum wage is a matter of statewide concern.
B. No political subdivision of this state may establish, mandate or otherwise require a minimum wage that exceeds the federal minimum wage prescribed in 29 United States Code section 206.In other words, pissed off about the Will of the (2006) Voters, Tom Forese, then (in 2013) chair of the House Commerce committee, sponsored HB2280. HB2280 failed to pass by a margin that would have satisfied the requirements of the VPA (a supermajority of 75 percent of each chamber) which would then have precluded the lawsuit by the Flagstaff Living Wage Coalition.
Tom Forese, by the way, is now an APS-owned captured regulator over at the Arizona Corporation Commission. He was the ONLY sponsor of HB2280.
Forese and probably plenty of others at the legislature knew full well that they were violating the VPA. They did this purposely. They also likely fully expected this lawsuit, though they may not have anticipated WHEN the legal challenge would be filed. Like with the redistricting suit heard in March by SCOTUS, this was a conscious act to harm workers (voters) in our state.
Preemption is a familiar tool in the legislative tool box. They've done or attempted to do so regarding firearms regulation, plastic bag bans and minimum wage, and no doubt plenty more matters. They do it because they can.
Eva Putzova, Flagstaff city councilwoman and chair of FLWC, also filed an affidavit supporting the complaint. From the affidavit,
The core of the Coalition’s activities focuses on bringing about positive labor policy changes and on community organizing to achieve the goal of all working people earning wages that afford a decent life in Flagstaff.On the Maricopa County Superior Court's online docket, you can check the status (for case CV2015-004240). Councilwoman Putzova advised me this evening that she expects the Attorney General's office to file a response to the complaint by May 15.
The bottom line, and why this lawsuit SHOULD be a slam dunk, is that when language in statutes conflict the courts interpret and tease the ambiguity out of the conflict. In this case, the conflict is clear and plain between legislation enacted by the legislature in 1997 and 2013 and that enacted by the voters in 2006.
In a pissing contest between the voters and the legislature, the Arizona Constitution clearly sets forth that the power resides with the PEOPLE. Article 2, Section 2 states,
2. Political power; purpose of governmentSection 2. All political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights.
Does it say the powers are established to protect and maintain the rights of Big Corporations?
By the way, if you're afraid this lawsuit will cause the price of hamburgers at Jack-in-the-Box in Flagstaff to skyrocket, you can rest assured, the economics do not supply any legitimate basis for such fear. Perhaps on another post, I'll link to or otherwise provide a Kahn Academy style lesson showing that a rise in the cost of labor at such a restaurant would likely cause a price increase of less than $.25 for that burger (and that's a high estimate) in order to support the new wage without impacting the net income for the business owner.
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In the meantime, here's what's really at stake.
On the other hand, here's why I believe Arizona Republicans were pissed off and purposefully intended to defy Arizona voters. From the Prop 202 publicity pamphlet, the first argument presented demanding (in a sweet, but still fallacious tone) that voters vote NO on the ballot measure, signed by now disgraced former Senate President Russell Pearce,
Fellow Arizonans join me in voting no on Proposition 202. Setting a state minimum wage at a rate that is almost 28% higher than the federal minimum wage and increasing it every year by indexing it to the cost of living is bad public policy. It will have severe damaging unintended consequences that our state cannot afford. Most importantly it will make our already intolerable illegal alien crisis even worse. We will be providing the worst of both worlds in creating economic incentives that will only serve to further attract more illegal aliens. On one hand many employers will find themselves forced to cut back on employment in order to accommodate the minimum wage. Unscrupulous employers will opt for employing illegals off the books at below minimum wage to maintain their business operations. This will be taking jobs away from our own citizens, promoting an expanded underground economy and depriving our state of tax revenue. Just as important on the other hand is the enhancement to illegal employers to risk the consequences hiring of illegal aliens. By setting an artificially high minimum wage illegal aliens will now have a greater incentive to enter our country and enjoy even higher rewards for being here. Making our state even more attractive to illegal immigration is something that makes no sense. Rather than creating more incentives for illegal aliens through the creation of an artificially high state minimum wage we should be pursuing policies to reduce the economic incentives for illegal aliens. What should be done is reduce government burden on small businesses and allow free-market concepts to work. That is what made America so great. I urge fellow Arizonans to vote no on Proposition 202. (emphasis mine)
- Pearce opens his argument with a claim that it's "bad public policy."
- He claims it will have "severe damaging unintended consequences."
- Next, as his first effort to "prove" those claims, he invokes the invective, "intolerable illegal alien crisis." Because he failed to set forth any evidence of the consequences of the immigration crisis, that puts Pearce's statement completely in the category of demagoguery and baseless propaganda.
- Without support, and economically wrong, he said "employers will find themselves forced to cut back on employment in order to accommodate the minimum wage." Ask yourself, WHEN have you EVER heard of ANY employer cutting jobs because of high wages? Ever? No! Instead, they eliminate jobs when they don't have adequate revenue (sales) to support the work the workers do. Okay, some traitorous big companies ship jobs they can ship overseas because of costs. But the jobs they can't send offshore are ONLY eliminated when there is NO DEMAND. What is the ramification (natural consequence) of putting MORE money in the pocket of workers? They SPEND it. That INCREASES demand.
- "What should be done is reduce the government burden on small businesses and allow free-market concepts to work." Again, because he clearly has no idea what the economic principles actually involve, he provides ZERO support for this claim. Government burden on small businesses is nothing more than Kochtopus code intended to pull the wool over the eyes of those without critical thinking skills.
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I will continue to monitor the lawsuit and update when the AG files a response to the complaint. Additionally, as I've mentioned before, I'm now reading David Berman's latest book which is a political biography of Arizona's first governor, George W.P. Hunt. You can thank Governor Hunt for having strongly advocated for the constitutional provisions on direct democracy -- initiative, referendum and recall. More on that subject when I finish the book.
Today it is a case of the grasshopper pitted against the elephant. But tomorrow the elephant will have its guts ripped out. Le Loi, Vietnamese emperor, 15th Century.
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