An attorney representing Arizona public schools asked a judge Wednesday to rule that lawmakers illegally withheld money that voters demanded be provided.
Don Peters pointed out that a 2000 ballot measure permanently hiked the state sales tax by six-tenths of a cent. One of the provisions, he said, required lawmakers to increase state aid to schools each year to match inflation - even if they have to hike other taxes to do that - unless voters can be convinced to rescind their mandate.
But Peter Gentala, representing House and Senate Republican leadership, said a strict reading of the statute permits lawmakers to increase either basic state aid or a smaller formula that governs only how much schools get for transportation costs.
The difference is significant: Peters said a full inflation adjustment would have meant $60 million in additional cash for schools this year; the alternate formula legislators used generated just $5 million.
Key to the fight is that ballot measure directing the Legislature to "increase the base level or other components of the revenue control limit" for state aid to schools by either the amount of inflation or 2 percent.
Until last year, lawmakers made a full inflation adjustment. But last year GOP leaders, looking for places to cut funding, concluded the "or" in the language gave them the option to fund just the transportation inflation.
Peters conceded Wednesday to Maricopa County Superior Court Judge Kenneth Mangum the ballot measure was "not a model of clarity." But he said the context of the words, coupled with other language in the plan, shows that voters clearly wanted to keep schools from falling behind because of inflation.
"Gentala gave us no answer to how it could possibly make sense that the voters said (to the Legislature) choose a mouse or an elephant, or both," Peters argued.
Compounding the argument is the fact that the state constitution specifically forbids lawmakers from tinkering with or ignoring anything approved by voters. Peters said the mandate to fund inflation is protected by that.
Gentala, however, argued that even the constitutional protection for ballot measures does not permit voters to tell lawmakers, facing changing conditions, what to do.
But Peters brushed aside arguments advanced by legislative leaders, in refusing to provide the full $60 million, that the state is broke and that everyone had to share in the cuts. Peters said the Arizona Constitution provides a clear answer to that, requiring the Legislature to "make such appropriations, to be met by taxation, as shall insure the proper maintenance of all state educational institutions."
"That's a mandatory duty," Peters told Mangum. "The constitution has told them the answer to this supposed dilemma."
And Peters said if lawmakers believe there isn't the money to fund the 2000 mandate, or that circumstances have changed, there is another option: Take the question back to voters and get them to repeal the inflation funding mandate.
In a curious twist, the state Attorney General's Office is actually siding with the schools and not legislative leaders in concluding that the 2000 law does require funding of the full inflation formula. But Assistant Attorney General Kevin Ray told Mangum that is irrelevant.
He said lawsuits like this are possible only to stop the illegal payment of public funds. Here, he told Mangum, there is no argument that all the other money appropriated by the Legislature last year - when they refused to fund the full inflation formula - is being spent illegally.
And that, Ray told Mangum, leaves him legally powerless to order lawmakers to come up with the extra cash.
Peters agreed that there are some questions about the power of the judicial branch to force the legislative branch to appropriate funds.
But he said there is a long history of Arizona courts declaring legislative acts illegal - and lawmakers working to fix them to comply. Peters urged Mangum to do just that here.