Friday, October 26, 2018

BREAKING/READ: Arizona Supreme Court 5-2 Opinions Removing Invest In Ed Initiative; Factual Error (In Majority Opinion) Detailed

Less than two weeks before an election in which two Arizona Supreme Court Justices are on the ballot for retention, the Court today released its 5-2 opinion on why it removed the Invest In Ed initiative from the ballot.

The two Justices on the ballot - Clint Bolick and John Pelander - both signed on to the majority opinion (which does not list a specific author). Chief Justice Scott Bales and Justice Ann Timmer each wrote brief dissenting opinions.  The opinions are published below.

The majority determined that the initiative's language would jeopardize bracket indexing and that that was a "principal provision" of the measure. Therefore, they reasoned, "Our failure to determine whether the description omits a principal provision before the measure appears on the ballot would reward sloppy or even deceptive drafting, and would render the statutory transparency requirement meaningless because it would allow a measure to proceed even if voters signing the petition were not made aware of principal provisions." (Paragraph 27)

Bales' dissent acknowledged that better drafting could have prevented the decision, but noted the incongruity of requiring drafting perfection from initiatives but not from the legislature's bill drafting. "But we have never required perfection in drafting as a condition for the valid exercise of legislative authority, and doing so with initiatives would infringe upon the people’s constitutional right to enact laws independently of the legislature."

He did not believe the 100-word description created a "substantial danger of fraud, confusion or unfairness sufficient to invalidate" the measure without a vote of the people. That challenges the language used on August 29, when the Court issued a brief order removing it from the November 6 ballot.

Interestingly, that order did not specify whether the seven Justices all agreed or who - if anyone - had voted to not remove the initiative; however, the Governor's office appeared to have inside information about how each justice had voted. (Arizona's Politics filed a records request with the Court to see if there were communications between the different branches on the subject; the court determined there were not.)

As a lead-in to addressing the specific language of the Invest In Ed proposal, the majority cited other cases where they prevented measures from being placed on Arizona ballots.  Then, to emphasize their fairness, they listed one example where they also required challengers to an initiative to conform to statutory requirements even if there was an addressable issue with the measure.

The example they attempted to use was against the Minimum Wage initiative two years ago. (Not coincidentally, the interests and attorneys on either side of that measure overlapped in the present measure.*)

The Supreme Court falsely states today that the trial judge in the minimum wage challenge had determined that not enough valid signatures had been filed. (The challenge was dismissed because it had not been timely filed.) The facts are that the trial court judge did not make such a determination and was unable to do so.

*Disclosure: The attorney/author of this article (Paul Weich) was peripherally involved in the minimum wage case.

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