PHOENIX — Two justices of the Arizona Supreme Court this morning criticized their colleagues for their Aug. 29 decision blocking voters from deciding whether to increase income taxes on the state’s most wealthy to fund education.
In a ruling released today, Chief Justice Scott Bales and Justice Ann Scott Timmer said the other five justices ignored Arizona law and court precedent in deciding that the 100-word description of the Invest in Ed measure is flawed.
Both acknowledged that the description did not mention that it appears the measure, if approved, could have done more than hike taxes on those earning more than $250,000 a year. That includes the possible repeal of a 2015 law that requires that the break points between tax brackets be increased and indexed according to inflation, a contention disputed by initiative organizers.
But Bales and Timmer pointed out that Arizona law does not require that the description that appears on initiative petitions contain each and every provision. In fact, they noted, the law tells would-be signers to be aware that the measure may be more complex and they should read the entire measure which is attached to signature sheets.
The essence of today's 5-2 ruling was no surprise.
In an Aug. 29 order, the majority faulted initiative organizers for the way they explained the proposal in the 100-word description on petitions.
Part of it was that the change in the tax rate for those earning more than $250,000 a year was described as a 3.46 percent increase. But the court pointed out the rate actually was going from 4.54 percent to 8 percent, an increase of 76 percent.
Instead, the justices effectively suggested, the increase should have been described as a 3.46 percentage point increase.
Then there was the failure of organizers to mention the changes in indexing tax brackets. That was never mentioned in the description.
All that, the five-member majority said in an unsigned opinion, "creates a significant risk of confusion or unfairness and could certainly materially impact whether a person would sign the petition.'' That is virtually the same language the court used in its Aug. 29 order blocking the measure from going on the ballot.
Today's ruling does more than explain the court's reasoning. It also becomes the basis for future justices to decide what does — and does not — meet the standards in voter-proposed laws to get on the ballot.
There is other potential fallout.
Justices John Pelander and Clint Bolick are up for reelection under Arizona's "retain-or-reject” system of merit selection. That means they need to get more people to vote to give them another six-year term than those who decide they should be turned out of office.
Several education activists had targeted the pair after the Aug. 29 announcement under the presumption that both had sided with the majority in keeping the initiative off the ballot.