Oct 092013

By Nick Worth
Governor Jan Brewer, along with Arizona Health Care Cost Containment System (AHCCCS) Director Tom Betlach moved last week to have a lawsuit brought by 36 Republican lawmakers and some private citizens dismissed because of lack of standing to sue.
The suit was filed in Maricopa County Superior Court and asks Judge Katherine Cooper to block the implementation of the Medicaid restoration law, which was approved by a simple majority of both the Arizona State House of Representatives and the Arizona State Senate, with bipartisan support. The 36 plaintiffs and their lawyers from the Goldwater Institute argue that the bill amounts to a new tax, and thus should have required a solid two-thirds of both the Senate and the House in order to become law.
In the maneuvering to get the bill passed, Brewer gave authority to impose a levy, or fee, on hospitals to Betlach and so was able to pass the bill by a simple majority, rather than the two-thirds required if the fee were called a “tax.”
Brewer and her lawyers contend the lawsuit is an attempt to circumnavigate the legislative process by having the court intervene.
In the motion, Brewer and her lawyers wrote: “Disgruntled legislators petition this court to intervene in the legislative process and “veto” a bipartisan bill they could not defeat through that process. Unsuccessful in mustering a majority of their colleagues to vote against Medicaid restoration, unable to obtain sufficient signatures to refer the legislation to the voters and unwilling to work within the legislature to amend or repeal the bill, they instead ask this court to intervene in the political process.”
Brewer contends in the motion to dismiss that the action could set a dangerous precedent.
“In so doing, they seek a drastic expansion of the standing doctrine as it exists in Arizona that, if accepted, would result in the possibility of courts being inundated with legislators’ lawsuits every time the legislators do not succeed through the legislative process,” reads the motion.
Brewer’s lawyers built most of their motion on the lawmakers “lack of standing” to bring suit, alleging they are only trying to get the courts to stop what they could not stop through legislation and then through a referendum.
The criteria for having “standing” is that the plaintiffs have to show they have been personally injured in some way by the action.
“In the most elementary way, the complaint fails to allege any injury to these plaintiffs arising out of defendants’ conduct,” reads the motion. “Because none of the plaintiffs have standing to bring this lawsuit, the court should dismiss plaintiffs’ complaint.”
In the motion to dismiss, Brewer’s attorneys note that in a previous case that rejected standing by individual legislators, the Supreme Court wrote, “Without the standing requirement, the judicial branch would be too easily coerced into resolving political disputes between the executive and legislative branches, an arena in which courts are naturally reluctant to intrude.”
The 36 Republicans suing Brewer over the Medicaid bill said their constituents’ voices were not heard because the lawmakers’ votes were not counted.
Brewer’s lawyers also noted in the motion that in two previous cases, Bennett v. Napolitano and Raines v. Byrd, the Arizona Supreme Court and the U.S. Supreme Court, respectively, have refused to grant standing to legislators trying to use similar arguments.
According to Brewer’s team, the legislation is “vitally important” and, if implemented, will:
* Provide hundreds of thousands of Arizonans with healthcare.
* Honor the will of the voters, who twice voted to provide a healthcare safety net for the state’s most vulnerable citizens.
* Protect the state budget now and in future fiscal years.
* Safeguard rural hospitals from closing.
* Combat uncompensated care and the hidden health care tax.
* Maintain and grow jobs in Arizona.
Judge Cooper has yet to set a date for a hearing on the motion.