State attorney says voters had no right to mandate education funding

PHOENIX -- Legislators are free to ignore a voter mandate to boost education funding each year to account for inflation, an attorney for the state told the Arizona Supreme Court on Tuesday.

Kathleen Sweeney, an assistant attorney general, conceded that voters did approve the inflation adjustment in 2000. And she also did not dispute that the Arizona Constitution prohibits legislators from repealing or altering voter-approved laws.

But Sweeney, seeking to allow the Legislature to disregard the 2000 law, told the justices the voters had no constitutional right to enact the funding mandate in the first place.

That brought a somewhat surprised reaction from Chief Justice Rebecca Berch. She pointed out that it was the Legislature that put the inflation adjustment provision on the ballot in the first place.

"They got the voters to vote on their bad language,' she said. "And now they're trying to disavow their bad language.'

Sweeney did not exactly contest the question of whether lawmakers essentially had pulled a fast one on voters, getting them to approve a law that had no legal standing.

"Perhaps, your honor,' she replied to Berch.

And Sweeney gave essentially the same response to a query by Justice John Pelander who asked if she was arguing that the 2000 vote was "a fruitless, useless act.'

The fight most immediately affects whether lawmakers are required to annually adjust education funding.

That 2000 ballot measure boosted the state's 5 percent sales tax by six-tenths of a cent. It also requires the Legislature to increase funding for schools by 2 percent or the change in the gross domestic price deflator, whichever is less.

Lawmakers did that until the 2010 when, facing a budget deficit, they reinterpreted what the law requires. The result is that, since then, schools have lost anywhere from $189 million to $240 million, depending on whose figures are used.

Don Peters, representing several school districts, filed suit.

Legislators did add $82 million in inflation funding for the new fiscal year that began July 1 after the state Court of Appeals sided with challengers. But they are hoping the Supreme Court concludes that mandate is legally unenforceable.

The outcome of this fight has larger implications -- and not only for future education funding. It also could set the precedent for what voters have the right to tell the Legislature to do.

Sweeney argued that there are limits, despite the constitutional right of voters to approve their own laws, and despite the Voter Protection Act that shields these laws from legislative tinkering.

She said the 2000 measure sets the formula for increasing state aid -- and then tells the Legislature to find the money from somewhere. Sweeney argued that infringes on the constitutional right of lawmakers to decide funding priorities.

Justice Scott Bales pointed out that the inflation formula is a statute. He said while it was enacted by voters, it should have the same legal status as a law approved by legislators themselves.

"Do you think the Legislature can simply ignore statutes providing that it shall do certain things?' he asked.

"Yes,' Sweeney responded.

Peters disagreed.

"The statute that requires inflation adjustments is the law,' he told the justices. "The Legislature has to obey the law like all the rest of us.'

And Peters said the constitutional Voter Protection Act precludes the Legislature from altering that law without first asking voter permission.

"Therefore, it must do what the statute required unless the people change it,' he said.

Pelander questioned whether there are limits on what voters can tell the Legislature to do. Peters responded that the Arizona Constitution gives voters broad powers to make their own laws as long as those measures do not "offend' other state or federal constitutional provisions.

"So they can do pretty much anything they want to,' Peters told the justices. "And that includes giving instructions to the Legislature.'

Peters acknowledged the Supreme Court has previously said a law approved by one Legislature cannot bind future lawmakers.

But he argued that, as far as voter-approved laws, all that changed in 1998 with enactment of the Voter Protection Act.

"That balance of power is different,' Peters said.

The justices gave no indication when they will rule.

Peters acknowledged after Tuesday's hearing that he could win his legal argument and still have a problem.

The high court could rule that lawmakers cannot ignore the 2000 law. But the justices have consistently refused to actually order the Legislature to find the additional dollars to fully fund the formula.

That could result in a situation where schools get the higher per-student funding as the formula requires, at least until the cash appropriated by the Legislature runs out. But Peters said he doubts lawmakers are willing to endure the wrath of voters if schools need to shut their doors before the end of the school year.


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