As an attorney and retired judge I have always considered the Arizona Constitution to be the highest law of the state, not a set of guidelines.
That’s why I am a plaintiff, along with a top local businesswoman, in the lawsuit brought by Rose Law Group challenging the constitutionality of Proposition 208, potentially the largest income tax hike in Arizona history.
While the measure passed narrowly in November, the lawsuit does not challenge the election itself. Instead it focuses on the assertion that Proposition 208 violates the Arizona Constitution. Our constitution says that the power to tax and make tax policy rests solely with the Arizona Legislature.
Proponents of 208 insist the people and their vote have sovereignty and the election represents their will. While the will of the people must be respected, a successful ballot initiative still must follow the law and the Arizona Constitution.
If backers of Proposition 208 had played by the rules, they would have had to change the Arizona Constitution. It can be done. The Arizona Constitution has been amended more the 150 times since statehood.
But getting a change to the Arizona Constitution on the ballot requires more signatures than a simple initiative. Fifteen percent of the number of those who cast ballots for governor in the last election must sign a petition. For a simple initiative, it is only 10%. A simple majority vote of the Arizona Legislature could also send an amendment to the ballot.
But what happened here is the proponents of Proposition 208 tried to make a significant tax change on the cheap. They didn’t want to pay many thousands of dollars more to petitioners to facilitate a change to the constitution rather than just attempt to pass a law by initiative. And it is far from clear that enough Arizonans would have signed such petitions or voted for the constitutional amendment.
Make no mistake, Proposition 208 represents a profound shift in the way Arizona collects taxes and spends money. It clearly conflicts with the Arizona Constitution by bypassing lawmakers and blowing away State spending limits with little oversight. If it is allowed to stand, it could bring about radical changes to Arizona taxes. What is to stop the next interest group funded voter initiative from attempting to yet again increase income taxes?
Any funding increases for Arizona’s schools has to be done legally. Rights must be respected. The Arizona Constitution must be followed or amended. There can be no shortcuts for something this important.
Simply put, when you create law you must follow the law. The Arizona Legislature is bound by the Arizona Constitution when it creates law. And so are the people of Arizona when they create laws through the initiative process. To do otherwise reduces the Arizona Constitution to a set of polite suggestions. That’s no way to govern.
Editor’s Note: John Buttrick is a retired Maricopa Superior Court judge and retired US Magistrate judge.