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Business group goes to court to block state education tax
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PHOENIX — The fate of a voter-approve tax on the rich to fund education could depend on whether a judge believes the money raised will be “grants’’ to school districts.

Attorney Andy Gaona representing Invest in Ed told Maricopa County Superior Court Judge John Hannah on Wednesday that’s how he should read the language in Proposition 208. He said the initiative spells out in detail how the money raised will go out in “grants to school districts and charter schools.’’

But Dominic Draye, representing Republican lawmakers and business interests trying to quash the levy, urged the judge to reject that interpretation.

“It’s torturing the language,’’ he told Hannah.

What Hannah concludes is crucial.

The Arizona Constitution imposes an “aggregate expenditure limitation’’ on school districts, a figure essentially determined by making annual adjustments to reflect inflation and student growth. And Draye said that applies to all revenues received by a school district.

Only thing is, Proposition 208 spells out that the money that will be raised — anywhere from $827 million to $940 million a year depending on whose estimate is used — is not subject to the limit.

But the problem is the initiative enacts changes in the law. And Draye said that cannot supersede the constitutional cap.

Gaona does not dispute the supremacy of the constitution.

He points out, however, that the constitutional definition of local school revenues does not include “grants.’’ And that, Gaona argued, means that the dollars raised and the money given out are not subject to that limit.

Hanging in the balance is the vote to impose a 3.5% surcharge on adjusted incomes above $250,000 for individuals and $500,000 for married couples filing jointly. Estimates are it would affect about 4% of Arizonans.

It spells out that 50% of the money would be in “grants to school districts and charter schools ... for the purpose of hiring teachers and classroom support personnel.’’ Those funds also can be used to raise salaries.

Another 25% is for student support personnel, with 10% earmarked to help retain teachers in the classroom, 12% for career and technical education and the balance into a fund to help pay the college tuition of those who go into teaching.

The measure was approved despite a campaign financed largely by business interests to kill it. Now some of the same groups, joined by Republican lawmakers, are moving to keep it from taking effect.

Draye actually has a laundry list of what he contends are legal flaws in the initiative.

For example, a voter-approved constitutional amendment requires a two-thirds vote when the legislature wants to enact a new or increased tax. Draye contends that same requirement exists when voters themselves approve a new tax.

Proposition 208, however, had a margin of approval of slightly more than 51.7%

Hannah, however, did not appear to be buying the idea that when voters decided that it takes two-thirds of the legislature to approve new taxes that they also were enacting limits on themselves.

“Isn’t the law pretty clear that the people acting through initiative can constrain the legislature in a way that’s different?’’ he asked.

Draye also sought to convince Hannah that it is illegal for the initiative to tell lawmakers they cannot use the dollars raised from this tax to reduce their own financial obligations to schools.

But he acknowledged that his strongest argument is that question of allowing the funds raised to be spent even if the amount exceeds the spending cap.

As Draye sees it, a “grant’’ involves something that is voluntarily given and there is discretion exercised by the entity providing the grant. By contrast, he said, the money at issue here is being raised and given out through a mandatory tax.

And if nothing else, Draye said the whole purpose of excluding grants from the spending limit was to allow districts to get things like federal dollars without hitting the constitutional cap. What’s at issue here, he said, are dollars raised locally from Arizona taxpayers.

Gaona, however, derided Draye’s arguments about what the constitution — and its exception for grants — mean as “fascinating pontifications.’’

“It does not say ‘private grants,’ ‘’ he said.

“It does not say ‘discretionary grants,’ ‘’ Gaona continued. “It says ‘grants of any type.’ ‘’

If Hannah doesn’t buy that, backers of the initiative have some alternate theories of why Hannah should reject the bid to quash the initiative over this issue.

First, Gaona pointed out, is that there is no evidence that school spending will hit the constitutional limit, even with the additional dollars from Proposition 208.

In fact, he pointed out that the state is spending less now than anticipated because a larger share of children are attending school remotely instead of sitting in a classroom due to concerns over COVID-19. And the state pays less aid to districts for remote learners than kids in seats.

Draye countered it makes no sense to argue that the spending cap won’t be affected.

“The whole goal here is to radically increase funding,’’ he said.

Second, Gaona noted that the legislature itself is free to raise the expenditure cap every year with a two-thirds vote.

“The funds will be collected, the funds will be there,’’ he told Hannah. “And if and when the expenditure cap ever becomes a problem ... the predictable and common-sense approach for legislators from both parties will be to come together to approve spending above the expenditure cap.’’

Draye disagreed.

“It certainly isn’t likely to happen,’’ he said. And even if it is possible, Draye said that’s irrelevant to the legal arguments.

The first issue for Hannah to decide is whether to immediately enjoin the law from taking effect.

To do that, he would have to conclude that the challengers are reasonably likely to succeed once there is a full-blown trial.

But even if he doesn’t grant the injunction, that still leaves another opportunity for challengers to seek that full trial. Hannah gave no indication when he will rule.

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Townsend says she won't comply with mask mandate for lawmakers
  • Updated

PHOENIX — An incoming state senator who represents part of Pinal County said she has no intention of complying with a newly issued directive that anyone entering the building must be masked.

Kelly Townsend, R-Mesa, told Capitol Media Services she won’t comply with the policy created by Senate President Karen Fann requiring all lawmakers to wear masks when meeting at the Capitol. Townsend contends the Prescott Republican has no authority in this area.

And Townsend is prepared for a fight.

“I’ve already told them where I stand,’’ she said. “What are they going to do? Arrest me?’’

What can be done, if the rules are followed, is simply refuse to allow Townsend into the building.

“They’re going to physically block me from the building?’’ she asked. “Well, that’d be fun,’’ promising to invite a reporter there when she attempts entry.

Townsend pointed out that there is no formal rule requiring masks — or, for that matter, any particular attire. And formal rules require a majority vote of the chamber.

But Fann believes she’s on solid ground, citing an existing — and approved — formal rule which gives her, as president, not just control of the Senate chamber but “all of parts of the Senate wing and all other areas and buildings used exclusively by the Senate.’’

Fann indicated she’s unlikely to back down — even if it brings legislative action to a halt.

“Failure to adhere (to these rules) could result in lack of quorums, inability to conduct voting and other work we need to accomplish,’’ she warned. And the ultimate result, Fann said, would be shutting down the session.

Townsend represents Legislative District 16, which includes Apache Junction, Gold Canyon and part of San Tan Valley.

In her memo to senators, Fann acknowledged that the issue of masks has become a political lightning rod. But the senate president said she hopes that having these rules will put that issue to bed — at least for legislative business — and “eliminate some of the divisiveness we have encountered throughout this pandemic.’’

That does not appear to be working.

The rules are designed to facilitate actual committee meetings, including allowing members of the public to actually participate in hearings.

But it remains doubtful that supporters or foes of legislation will be able to pack hearing rooms the way they have until now. That’s because visitors will be allowed into the building only to actually participate in a committee hearing or for a prescheduled meeting with a senator or staffer.

The House is expected to announce its own rules this coming week.

They are expected to be similar, with Fann saying the Senate rules “were developed in collaboration with the House for uniformity and consistency for all within the Capitol community that participate in legislative proceedings.’’

The rules come as lawmakers grapple with how to conduct business amid the continued threat of infection from the coronavirus.

It starts with the idea of limiting the chances that someone who is infected will even enter the building. Under the rules, anyone wishing entry, including lawmakers, staff and visitors, will be subject to temperature checks.

Then there’s the requirement for masks.

A legislator or staffer in his or her own individual closed office will be free to unmask. And there even are allowances for people who have their own dedicated work space, which can include a desk or cubicle.

“However, if one person enters another person’s dedicated work space, then everyone in that space must wear a mask or other appropriate face covering,’’ the rules read. “There are no exceptions.’’

And not just any mask or piece of cloth covering just part of the face.

“Masks or other face covering must cover the nose and mouth and should fit snugly against the sides of the face,’’ according to the policy.

There is a provision for those who are “medically unable’’ to wear a mask according to their doctor. They are required to wear a face shield that covers the mouth and nose.

But that’s not a preferred solution, with the rules urging these people to work remotely.

There is a separate rule for “social distancing’’ of six feet between individuals, along with no shaking hands or other physical contact.

The rules also create a new duty for Senate pages, requiring them to disinfect hearing rooms and the caucus rooms after each meeting.

And there will be free testing for staffers and lawmakers during certain hours of each day.