AZ Supreme Court Asserts Justices, Not Lawmakers, Have Final Word On Constitutionality

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Nearly two months after the Arizona Supreme Court declared some or all provisions of four 2022 budget reconciliation bills (BRBs) would not go into force, the justices released a formal opinion Thursday making clear it is the Court’s duty to ensure the Arizona Constitution is given full force and effect even if it means reviewing the work of the Legislature.

The unanimous opinion authored by Justice John Lopez IV explained why the Court affirmed a Maricopa County judge’s ruling from September putting the brakes on several provisions of the challenged BRBs. The State had argued the dispute centered on a political question, and thus the Arizona judiciary lacked authority to weigh in on the validity of the BRBs.

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Lopez went head on into the issue of authority, writing that whether the Legislature complied with its constitutional requirements is not something for lawmakers to self-govern.

“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.”

The case stems from one of the Legislature’s fundamental duties – adopting an annual budget. The budget process includes a general appropriations bill, known commonly as the “feed bill,” which funds previously authorized government expenses as well as other appropriations.

“The general appropriation bill shall embrace nothing but appropriations for the different departments of the state, for state institutions, for public schools, and for interest on the public debt,” Lopez wrote.  He added that the Arizona Constitution requires any other appropriations to “be made by separate bills, each embracing but one subject.” In addition, the subject of each bill “shall be expressed in the title.”

These requirements are known as the Single Subject Rule and the Title Requirement.

Judge Katherine Cooper of the Maricopa County Superior Court ruled in September that some sections of three BRBs -HB2898 (K-12 Education), SB1824 (Health), and SB1825 (Higher Education)- violated the title requirement, while SB1819 (Budget Reconciliation) violated the title and the single subject rule.

In fact, Lopez noted that SB1819 addressed 30 unrelated topics among its 52 sections, a practice Cooper had described as “classic logrolling – a medley of special interests cobbled together to force a vote for all or none.” 

The State’s contention that how BRBs are constructed was a matter for only the Legislature prompted Justice Clint Bolick to issue a concurring opinion.

Noting he agreed “entirely with my colleagues’ reasoning and disposition” in the case, Bolick wished to reiterate his prior opinion that looking at a constitutional inquiry from a political context “abdicates the judiciary’s central role in determining whether the political branches have traversed their constitutional boundaries.”

“The controversy here is not a political question because the constitution does not assign to the legislature the power to finally determine whether its bills comply with the title requirement or single subject rule,” wrote Bolick, whose wife voted for all four bills as a member of the House of Representatives.

The Supreme Court’s opinion puts an end to several bills which passed on party-line votes, including statutory prohibitions against mask mandates and COVID-19 vaccination mandates were void.

There are also now questions as to how and when a Southern Arizona Regional Sports Authority will be created, and whether the Governor’s Regulatory Review Council has the authority to review the existing rules of various state agencies to determine which rules are violate state law.

Other voided provision involved Arizona Secretary of State Katie Hobbs, including one which would have taken oversight of the State Capitol Museum from Hobbs to the Legislative Council. Another would have prohibited Hobbs (or the future Secretary of State) from defending or opposing state election laws. Instead, that authority would have been vested with the Arizona Attorney General.

The budget bill would have also banned the Arizona Lottery from engaging in any advertising connected to professional sports teams or events. Other laws impacted the operation of the Arizona Department of Gaming, Arizona Game and Fish Department, and Arizona Department of Public Safety.

Thursday’s opinion by Lopez included a caveat that the current opinion only applies to the challenged BRBs and future bills. That means budget bills from prior years which may not have complied with the single subject or title requirement cannot be challenged, Lopez noted.