Judge to rule on First Things First measure

PHOENIX -- A judge will decide this month whether Republican state legislators skewed the description of a controversial ballot measure to make sure it passes.

Attorneys for the Arizona Early Childhood Development and Health Board contend lawmakers who are members of the Legislative Council purposely characterized Proposition 302 to hide certain facts from voters. That includes a limit on how much the program, better known as First Things First, can spend on administrative costs.

What's also missing is a reminder to voters that they -- and not lawmakers -- adopted the measure in 2006 to help provide more programs to help preschool children with health and education.

Rhiann Allvin, executive director of First Things First, pointed up the shortcomings when the council met last month to perform their legal obligation to provide an "impartial analysis' of each ballot measure. But the Republicans who control the committee rejected two changes that she said would have made the language more balanced.

Now the issue is in the hands of Maricopa County Superior Court Judge Robert Oberbillig.

On Monday he scheduled a hearing for July 26 to hear arguments. Attorneys for the Legislature are arguing there is nothing wrong with the wording and the judge should leave it along.

Oberbillig said he is set to go on vacation soon after that, portending a quick ruling.

Whichever side loses, though, is likely to take the issue to the Arizona Supreme Court.

Central to the question is what voters will be told about the push by the Republican-controlled Legislature, looking for additional sources of cash to balance the budget, to take control of the proceeds of an 80-cent-a-pack tax on cigarettes which was approved as part of the 2006 plan. Allvin said that levy generated about $135 million in the just-completed budget year.

The 2006 measure sets up a board to fund programs throughout the state aimed at young children. Goals include improving access and quality of early childhood development and health programs, increase access to preventative health care for children through age five, and offering parent and family support and education for childhood development and literacy.

Because the program was approved by voters, lawmakers are constitutionally forbidden from touching the proceeds from the tobacco tax that funds it. So lawmakers instead decided to ask voters to scrap all the programs being financed.

But Proposition 302 would keep the tobacco tax in place and instead allow lawmakers to use it for any program for health and human services for children, including those now being financed through general tax revenues.

Supporters of the program, having lost the fight at the Legislature to keep the measure off the ballot, now are gearing up for the election. But Allvin said lawmakers are stacking the deck against the program.

Some of what's missing, she said, is reminding voters they approved the plan themselves. But Allvin said there are other flaws.

For example, the description approved by the Legislative Council says the funds serve two purposes: funding offices, employing staff and establishing regional councils; and disbursing money for program and grants.

"It leaves one to believe that there is equal emphasis on our building up our administrative infrastructure as is building up programs and services,' Allvin said. She pointed out, though, that the voter-approved law limits administrative expenses to no more than 10 percent of what is collected.

An effort by Rep. Chad Campbell, D-Phoenix, to get members of the Legislative Council to mention that 10 percent cap was voted down by the Republican-controlled panel.

Attorney Rhonda Barnes acknowledged in the lawsuit that nothing in the description is technically wrong. But she said that doesn't make what they have done legal.

"The Legislative Council can produce an analysis and description of a proposition that contains no literally false statements, but which is nonetheless not impartial,' she wrote.

Allvin said one problem of letting the lawmakers who are members of the Legislative Council write the description is that they have an interest in the outcome.

"They wouldn't have sent this to the voters if they don't want our money permanently,' she said. "I image that they would like the language to reflect their view as much as possible.'

Courts have overturned descriptions of prior ballot measures which had been approved by the Legislative Council.

In 1994, for example, the justices rejected how the panel of lawmakers told voters about a legislative proposal that would have all but repealed three sections of the state Constitution that prevent legislators from setting limits on jury verdicts or eliminating the right to sue in certain cases. After the description was reworked to meet the court order, voters rejected the proposal.

And the high court similarly rejected Legislative Council wording of an initiative -- one proposed by voters and not lawmakers -- designed to expand eligibility for taxpayer-provided health care. It passed after the justices ordered the description reworked.

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