- Associated Press - Wednesday, March 26, 2014

PHOENIX (AP) - Lawyers for Republican lawmakers who control the Arizona Legislature tried to persuade a panel of appeals court judges Wednesday to revive their suit seeking to block funds for Gov. Jan Brewer’s Medicaid expansion plan.

A lower court judge last month threw out the lawsuit, saying the 36 GOP lawmakers who sued had no right to pursue the action because lawmakers themselves decide if an assessment triggers a constitutional requirement for a 2/3 vote. Lawyers for the lawmakers want the court to take up their appeal.

The three-judge Arizona Court of Appeals panel sharply questioned Brewer’s lawyer, Douglas Northup, on why they shouldn’t hear the appeal, focusing at times on the constitutional requirement that was adopted by voted in 1992’s Proposition 108. The Legislature turned back efforts by expansion opponents to require the two-thirds vote.

“They could have not even brought this to the floor for a vote,” Northup said of legislative leaders. “The President and Speaker had that power, yet they did. The vote was made, there were three different floor amendments made to add the Prop. 108 language and they were voted down.

But Judge Peter B. Swann said allowing a majority vote not to trigger the constitutional requirement didn’t make a lot of sense.

“Then that would sort-of render the entire constitutional amendment toothless, wouldn’t it, if a majority, a simple majority, could decide that no supermajority is required, when would a supermajority ever be required?,” Swann asked.

Maricopa County Superior Court Judge Katherine Cooper’s ruling said their argument that a hospital assessment included in last year’s House Bill 2010 was, in fact, a tax that required a supermajority vote of the Legislature under Arizona’s constitution was incorrect. Her ruling said they were not harmed and therefore could not sue.

The attorney for the Goldwater Institute, Christina Sandefur, told the appeals court judges Wednesday that the whole process would be upended if the case was sidetracked.

“If Legislators are not able to assert standing in order to preserve the integrity of the Legislative process, in order to preserve their right to vote, then that is going to be very detrimental to the public process itself,” Sandefur said.

The judges said they would rule later on whether to accept the case, and what topics they might hear if they were to do so.

Last month’s dismissal handed the Republican governor a major victory in her battle against conservative members of her own party.

A bipartisan coalition of lawmakers Brewer assembled to support her plan voted not to impose that requirement on the law, which expanded the state’s health insurance program for the poor, known as the Arizona Health Care Cost Containment System, or AHCCCS. The law included an assessment on hospitals designed to pay the state’s costs.

The hospitals backed the proposal, in large part because they believed they would see far lower costs for uninsured patients.


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