EDUCATION

Full #InvestInEd opinion released: AZ Supreme Court voted 5-2 to knock it off ballot

Lily Altavena
The Republic | azcentral.com
Arizona Supreme Court justices voted 5-2 to remove an education tax measure born out of May’s teacher walkout, #InvestInEd, from the November ballot.

Arizona Supreme Court justices voted 5-2 to remove an education tax measure born out of May’s teacher walkout, #InvestInEd, from the November ballot. 

Justices Robert Brutinel, John Pelander, Clint Bolick, Andrew Gould and John Lopez voted to knock the measure off the ballot, while Chief Justice Scott Bales and Ann Timmer dissented.

"Although our decisions safeguard the voters’ legislative power, this Court in many cases has invalidated citizen initiatives and referenda that did not comply with applicable requirements," the justices wrote in their opinion. 

The justices wrote that the act failed to fully outline how the measure "fails to mention that the measure modifies the inflation indexing of income tax rates that was adopted in 2015, thus exposing most taxpayers to tax increases."

The average Arizonan would have seen about a $16 tax increase due to that, had the proposal taken effect as written.

They also said the description of income-tax rate hikes for high earners — the key portion of the ballot measure — was ambiguous because it described the changes in rates as percent increases, not percentage-point increases.

The opinion has raised questions over the independence of Arizona's judicial branch. Last month, Republican Gov. Doug Ducey's campaign staff told 12 News reporter Brahm Resnik the vote was 5-2 a day after the ruling. Now the opinion has confirmed that vote tally. 

A court spokesman said an internal inquiry found no evidence of the justices disclosing the tally before the opinion was released. 

The actual vote tally is supposed to remain undisclosed until the full opinion is released, which happened Friday. Ducey's spokesman Daniel Scarpinato said he had passed along a rumor about the tally and reiterated Friday that there was no communication between any of the justices and the governor about the vote. 

He told Republic columnist Laurie Roberts last month that, "I heard a rumor, shared with Brahm Resnik on background, not for attribution, as I often do with reporters I know (including you), and he chose to share it on television. I have no idea if it's true or not."

Two Justices are up for re-election on the Nov. 6 ballot: Clint Bolick, appointed by Ducey, and John Pelander, appointed by former Republican Gov. Jan Brewer. 

All of Ducey's appointees voted to knock the measure off the ballot. The governor signed a law in 2016 that expanded the number of justices from five to seven.

Later that year he appointed John R. Lopez and Andrew Gould to the court, both of whom voted to knock the measure off the ballot. He appointed Bolick before the court's expansion.

Ducey staffers attended event with justice evening after ruling 

A photo that appears to show Bolick seated next to Ducey's budget director at an education gala the evening after the ruling came down in late August further roiled Democrats on Friday.

The gala was for an Arizona Chamber of Commerce initiative called "A for Arizona." The chamber backed the group that brought the lawsuit leading to #InvestInEd's removal from the ballot. 

Scarpinato confirmed that he and Matt Gress, the governor's budget director, were seated at the table with Bolick during the chamber event. He said the event was held hours after he told reporters the vote tally. The tally, which he characterized as a rumor, "did not come from Justice Bolick, it did not come from anyone on the court," he said.  

He denied discussing any court matters with the justice at the event. 

"We just made small talk during dinner about things going on in Arizona and about the event," he said.  

It is not against the Arizona Code of Judicial Conduct for a justice to attend an event like the "A for Arizona" gala.

Ducey's opponent in the race for governor, David Garcia, fired shots over the photo, though. Garcia's campaign sent the photo to reporters in a news release on Friday afternoon, calling the court "Ducey's rigged Supreme Court." 

Aaron Nash, a spokesman for the court, said Friday that an internal inquiry over a possible confidentiality breach turned up no evidence of such a disclosure. Nash provided a series of emails between Chief Justice Scott Bales and most of the justices wherein Bales asked if anyone knew how the tally got out.

Brutinel, Timmer, Bales, Lopez and Gould all said in emails that neither they nor their clerks had any idea how the tally was disclosed.

Bolick said an email that Jonathan Paton, a former Republican state senator, told him that he heard the vote breakdown from a "very reliable source." Bolick added that while he told his clerks the tally, they are "not politically connected." 

Nash said Pelander also confirmed to the chief justice that he had no knowledge of a disclosure, but didn't do so via email. 

Education advocates turn on judges

Some education advocates are urging voters to kick Bolick and Pelander off of the court due to the measure's removal. Both are on the November ballot.

Teresa Ratti, a Mesa Public Schools government teacher and local education activist, said Friday that the tally confirmed her reasoning for voting against Bolick and Pelander. 

"It just makes me suspect over how much influence the governor had over that decision," she said. "Each branch should be independent of the other, that’s what I teach the kids. If they’re not going to do that, then where are we as a nation?" 

David Lujan, treasurer for the Prop. 207 campaign, said the opinion shows how difficult it is to add something to the ballot in Arizona. 

"It sends another signal that the system is rigged against voters," he said. "It really raises questions as to how somebody on the governor's staff knew that the decisions was 5-2 and which of the justices were the two dissenting votes." 

Jaime Molera, chairman of Arizonans for Great Schools and a Strong Economy, the group that formed to oppose the measure, said they are "pretty pleased." 

"The proponents could have done so much more to make this a more clear and direct argument," he said. "I think it was extremely ambiguous." 

The court filed its ruling Aug. 29, writing that the measure's description "did not accurately represent the increased tax burden on the affected classes of taxpayers."

The bulk of the money from the measure would have come from raising taxes on high-earning Arizonans. Prop. 207 would have raised income-tax rates by 3.46 percentage points to 8 percent on individuals who earn more than $250,000 or households that earn more than $500,000.

It also would have raised individual rates by 4.46 percentage points to 9 percent for individuals who earn more than $500,000 and households that earn more than $1 million.

Dissent: 'We have never required perfection'

In the dissenting opinion, Bales wrote with Timmer that while Prop. 207's description could have been drafted better, "We have never required perfection." The two dissenting justices wrote that the argument over indexing should be left to those trying to persuade or dissuade voters. 

They added that voters will not be allowed to consider the measure because "the description used the % symbol instead of the words 'percentage points'", even though hundreds of thousands signed the petition.

In the main opinion, the justices wrote that Prop. 207's description was ambiguous because it used the percent symbol rather than the words "percentage points" in describing the income tax rate hikes.  

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