The attorney for state lawmakers told a judge Friday there's no basis for her to order his clients to give up to $2.9 billion in withheld state aid to public schools.
In fact, Bill Richards told Maricopa County Superior Court Judge Katherine Cooper it would be unconstitutional for her to do that.
Richards said if his clients wanted to — and he's not saying they would — they could reject any order from her to cough up any amount of new funds as a violation of the constitutional separation of powers between the legislative and judicial branches.
“We don't have the money sitting somewhere in a bag,” he said.
Richards said any mandate come up with the money would require an order on lawmakers to increase taxes, something he said courts cannot do. He said all judges can do is tell lawmakers they were wrong.
“The court's not allowed to say, ‘Tomorrow, you have to disburse $300 million,’” he told Cooper. He said the only remedy for schools that successfully sued the Legislature for withholding the cash would be to ask voters to kick the offending lawmakers out of office.
The argument drew a surprised reaction from Don Peters, the attorney who got the Arizona Supreme Court to rule last year that lawmakers ignored a 2000 voter mandate to increase state aid each year to account for inflation. The justices said that refusal violated the Voter Protection Act, a constitutional provision prohibiting legislative tinkering with anything approved at the ballot.
Peters said this isn't a question of judges treading on lawmakers’ turf. Instead it is a case where the Legislature violated constitutional right of the people to enact their own laws — and the court has to step in to restore the rightful power of the people.
Cooper declined to say whether she buys Richards' argument about the limits on judicial powers.
But she noted the Supreme Court did rule lawmakers broke the law and sent the case back to her to come up with a final order of what the schools are due. And that, Cooper said, requires her to act.
There's a lot of cash hanging in the balance.
First is the question of going forward. After losing in court, lawmakers did agree to add about $80 million in state aid to public schools this year and a similar amount for the coming year.
Peters, however, said that's not enough.
At the very least, he said the formula for setting the annual inflation increase should be adjusted to what it would have been had lawmakers not ignored the voter-mandated requirement for three years. Peters said that amounts to more than $316 million immediately, with future adjustments computed off that new base.
But Peters also contends the schools should get the nearly $1.3 billion in inflation dollars they were denied. All totaled, the extra funding would come to nearly $2.9 billion over five years.
“We're here because the Arizona Legislature ignored the advice of the attorney general and violated the law, not once but several years in a row,” Peters said. “A large number of students across Arizona have been injured by that and continue to be injured by that.”
Peters said the withheld money is needed, citing claims by school officials of aging buses and teaching materials that could not be replaced because their funding has not kept pace with inflation.
“We're not asking for some windfall where we're going to start throwing big parties at school districts,” he said. “The needs are acute and the money would be put to good use.”
Richards gave Cooper several legal reasons supporting his belief that what was lost in the intervening years cannot be recovered.
But in his legal arguments Friday, he actually went beyond that: The way Richards calculates it, lawmakers legally owe nothing at all to public schools — including the money they just agreed to provide.
That's based on his belief that all the Supreme Court decided last year is that the 2000 voter-approved law requires state aid to increase every year by 2 percent or the change in the gross domestic price deflater, whichever is less. And he contends that increase is calculated not on what the state spent the immediate prior year but what was state aid in 2000.
Richards pointed out there were some years in the interim that state aid actually increased more than legally required. He said that means lawmakers are free to actually reduce year-over-year funding — as long as it still increased on an annualized basis by 2 percent since 2000.
That argument drew an exasperated response from Peters. He told Cooper that lawmakers, having lost at the Supreme Court, are playing legal games to get out of their obligation to comply with the voter mandate and properly fund schools.