In a decision that could turn Arizona’s legislative process on its head if upheld by higher courts, a Maricopa County judge ruled Monday that several new laws set to take effect Wednesday are unconstitutional because the substance of the laws has nothing to do with the title of the legislation.
Judge Katherine Cooper ruled several sections of three budget reconciliation bills (BRBs) passed this summer and signed by Gov. Doug Ducey violate the title / single subject matter requirement of the Arizona Constitution and “are therefore void and unenforceable.” The impacted sections are 12, 21, and 50 of HB2898 (K-12 Education), sections 12 and 13 of SB1824 (Healthcare), and section 2 of SB1825 (Higher Education).
All the voided provisions would have established new laws effective Sept. 29, including a ban on public and charter schools mandating masks on school property, outlawing state universities from imposing COVID-19 vaccination mandates, and prohibiting the teaching of Critical Race Theory in taxpayer-funded schools.
Cooper also ruled the entirety of SB1819, the Budget Procedures bill, was void for the same reason. It contained 55 pages of last minute new laws about such disparate topics as election reform, county fairs, horse racing, lottery advertising, public employee pensions, and even a governor’s emergency powers.
“The bill is classic logrolling – a medley of special interests cobbled together to force a vote for all or none,” she wrote.
A spokesman for Ducey, however, had quite a different take on Cooper’s ruling, calling it an example of judicial overreach by “a rogue judge” who is interfering with the authority of another branch of government.
“Arizona’s state government operates with three branches, and it’s the duty and authority of only the legislative branch to organize itself and to make laws,” spokesman C.J. Karamargin said in a statement. “Further action will be taken to challenge this ruling and ensure separation of powers is maintained.”
Cooper was appointed to the Maricopa County Superior Court in 2011 by then-Gov. Jan Brewer, who like Ducey is a Republican.
The legal challenge to those four bills and the new laws they created was filed last month by several groups, including the Arizona School Boards Association. The lawsuit asked Cooper to declare the disputed provisions unconstitutional and to enjoin the State and any of its agencies from implementing or enforcing the new laws when they took effective this week.
The plaintiffs had also argued section 12 of HB2898 violated the equal protection clause of the state constitution as well, but the judge said she did not have to address that argument because she had already found section 12 unconstitutional under the title / single subject argument.
Cooper’s 16-page ruling also notes that because she has declared all of the disputed sections to be unconstitutional, there is no need for an injunctive order. She did point in her ruling to the fact Arizona Revised Statute 12-1838 addresses any future relief the plaintiffs may require if Cooper’s order is not complied with.
Among the evidence considered by Cooper was language found on the Senate Fact Sheets created by legislative staff to summarize every bill. The facts sheets for the challenged BRBs contained language reminding legislators that the Arizona Constitution “prohibits substantive law from being included in the general appropriations, capital outlay appropriations and supplemental appropriations bills.”
But if it becomes necessary to make statutory and session law changes to actually effectuate the budget, then BRBs can be used to introduce legislation “to enact these provisions.”
Cooper noted nothing in SB1819 or the sections of HB2898, SB1824, or SB1825 which she found unconstitutional were related in any way to effectuating the budget.
“As BRBs, their function was to enact laws to effectuate the budget. It was not to enact laws prohibiting mask mandates, regulating school curriculum, or authorizing special interest projects unrelated to the budget or budget reconciliation,” the judge wrote in her ruling.
For his part, Arizona Attorney General Mark Brnovich reacted to Cooper’s order by announcing the state planned to appeal the ruling.
“It’s unfortunate that left-wing groups want to undermine the legislative process and indoctrinate our children with critical race theory and force vaccines on those who don’t want them,” his statement read. “I will continue to stand for the rule of law and the people of Arizona.”
It is possible the new laws could still go into effect later this week if the Arizona Court of Appeals issues a temporary order while the case is further litigated.