PHOENIX — Lawmakers are not conceding they acted illegally in the way they banned mask mandates at schools as part of the state budget.
But they are telling the Arizona Supreme Court that if they did break the law, the justices should let them get away with it one more time. Well, actually, several more times.
They want to be able to enforce not just the ban on schools requiring face coverings of faculty and students, but also a grab bag of other items stuffed into what lawmakers call “budget reconciliation bills.”
Among these were measures to stop universities from mandating vaccines, strip Secretary of State Katie Hobbs of some of her powers, create a committee to study the election audit, and tell schools how they can — and cannot — teach about race, gender and ethnicity.
The state’s high court will hear their arguments Tuesday, Nov. 2.
Attorney General Mark Brnovich, who is defending the lawmakers, wants the justices to overturn a ruling by a Maricopa County judge that lumping those provisions — and many more — into catch-all bills violates the state constitution. The ruling by Superior Court Judge Katherine Cooper also said the contents of each bill must be reflected in the title and that measures must be limited to a single subject.
Among Brnovich’s contentions is that this is strictly a legislative matter, not subject to judicial review.
But perhaps unconvinced that argument is going to fly, the attorney general is telling the justices that no one ever told lawmakers they couldn’t approve disparate issues that way. He wants them to let these provisions take effect with an admonition not to do it again.
He is not alone. In a separate legal brief, House Speaker Rusty Bowers, Senate President Karen Fann and Gov. Doug Ducey say that if the justices conclude they broke the law, they should nonetheless let this budget stand, let all the disparate provisions take effect, and tell the lawmakers what they need to do — in the future — to comply.
“The legislature stands ready to implement diligently the judiciary’s constructions” of what the Arizona Constitution means, wrote attorney Thomas Basile on behalf of Bowers, Fann and Ducey. “But it is entitled to fair notice of, and an opportunity to institute, such new doctrinal developments.”
That presumes, however, the justices believe that lawmakers didn’t know — and shouldn’t be expected to know — what the framers of the Arizona Constitution meant when they spelled out in 1912 that every legislative act “shall embrace but one subject” and that subject “shall be expressed in the title.”
Education advocates and their allies sued over the budget bills and got Cooper to rule in their favor. Their attorney, Roopali Desai, is reminding the justices that the Supreme Court has, in fact, weighed in on this issue before.
That was in 2003 when state lawmakers sued then-Gov. Janet Napolitano over her vetoes of several provisions in what at the time were called “omnibus reconciliation bills.”
Chief Justice Charles Jones, writing for the unanimous court, said the justices were being put in a position of trying to determine if a governor is constitutionally authorized to veto provisions of an omnibus bill when it appears the Legislature itself was not obeying the rules.
“The problem arises” because the bills “address multiple subjects,” Jones wrote, calling it “the apparent non-adherence to the single subject rule in the legislative process.”
Basile, however, said lawmakers took that 2003 ruling seriously and changed their procedures. Before 2004, he said, all miscellaneous odds and ends were put into three omnibus reconciliation bills, the practice the justices found legally wanting.
Since then, Basile said, lawmakers have broken them down into smaller chunks.
This year there were eight budget reconciliation bills, he said, each with “distinct subject areas” such as environment, health, K-12 education and criminal justice. He said going from three to eight “complies with the single subject rule, while still accommodating the practical demands of governing a large, diverse and continually growing state.”
Not good enough, countered Desai. She said lawmakers want the justices to find that simply breaking these into smaller pieces, by itself, complies with the Arizona Constitution.
Desai said they first have to look at what’s in each bill. And once they do, she contends they’ll conclude that, whether it’s three bills or eight, the Legislature is not following the constitutional demand.