Well, Duh

In a move that should have surprised nobody, but will doubtless inspire more than a little well-practiced umbrage from the legislative leadership nonetheless, the Arizona Supreme Court unanimously ruled this week that the Legislature’s diversion of funds from the State Land Trust to balance the budget was unconstitutional.

This sort of thing has happened so many times before that it is safe to assume what happened back in 2009 when this was passed. The Democrats, in committee and on the floor, pointed out that this move was problematic, only to be ignored or rebuffed. Then, the House and Senate passed the measure despite the fact that their own attorneys told them that it was likely to be overturned.

Attorneys and judges make the big bucks in large part because the constitution is “a living document” that to a great extent is open to interpretation. Every generation of Arizona Students Association activists, for example, faces disappointment when they learn that the legislature and the courts disagree with them about what Article 11, Section 6 means when it says that higher education “shall be as nearly free as possible.”

Unfortunately for the Governor and her attorneys, the language involved here was far less equivocal. In fact, it is downright verbose in its specificity. One snippet, however, could well have been the basis for the entire decision:

B. No monies shall ever be taken from one permanent fund for deposit in any other, or for any object other than that for which the land producing the same was granted or confirmed.

To most people, the intent here seems pretty clear. It is even more so when one considers the history of how the State Trust Lands came to be. Back in the late 19th century, Congress tended to be leery about granting statehood to the western territories, not only for partisan political reasons, but also because of a perception that the territorial legislatures, Arizona’s in particular, tended to be reckless and irresponsible. Also, by the time Arizona became a state, Congress, having had the experience of granting trust lands to new states since 1793, was eager to prevent these resources from being squandered or otherwise mismanaged as they had on occasion in the past.

The result of this is that the integrity of the Trust is protected not only by the Constitution, but also in the Enabling Act, the federal law which allowed Arizona to become a state in the first place. This is why all but the most modest of changes to the system would need not only a ballot measure to change the Constitution, but could potentially require an act of Congress. Even one of the architects of the scheme, Rep. John Kavanagh (R-Fountain Hills), in his comments in the Star this morning, seems to admit that a legislative fix to reverse the ruling would be more trouble than it would be worth.

This all begs the question of why the Legislature ever thought this would work. They cannot very well claim ignorance, though it may seem tempting for some to agree. But, then, in the environment of unnecessary haste and phony urgency that the legislative leadership creates around the budget, asking questions is considered rude if not treasonous, and it is understandable that the members would let minor matters such as the State Constitution slide.

Alternately, it is also tempting to blame this on the legislature’s clueless failure to accept its role as a co-equal branch of government under the Constitution. Time and time again, the legislature’s claims to supremacy over the Governor, the courts, and even the Tucson City Council have been rebuffed, yet they still persist in this delusion. Thus, they waste considerable taxpayer dollars picking fights that they almost always lose.

Yet another hypothetical assumes that the legislature knew what they were doing all along and expected this very result. After years of domination by a “starve the beast” mentality, there remains little room for cuts in the state budget, and the majority is impaired by a dunderheaded refusal to consider the issue of revenue, so there are very few options when tackling the budget. Under these circumstances, it is easy to imagine that they would say something like “Heck, I know that it is illegal, but we can transfer this $13 million and get this thing done for the year. We can worry about how to make it up later when the courts tell us that it is unconstitutional. It is June already and I just want the session to end so I can go on vacation.”

Of course, this would be the same sort of “accounting trick” for which the Republicans still criticize the previous Governor. Perhaps consistency is a bit too much to hope for.

The larger question is whether this makes a big lie out of Republican posturing about fiscal discipline. The fund transfer was unconstitutional, and now $13 million dollars is unaccounted for. Sure, the money can be found elsewhere with a little work, but, for the time being, can this budget really be considered “balanced?”

NB: Arizona Bill designed by Bob Richards

From Our “Put On Your Feathers, Ese…” Desk

Remember back in 2010 when two escapees from a private prison near Kingman murdered a couple in New Mexico? Our State’s leaders are hoping you don’t.

To recap, the incident at a prison run by Management and Training Corporation (who re-enter our story later) highlighed connections between the private prison industry and the governor’s office and legislative leaders like Andy Tobin and John Kavanagh. It also caused the Department of Corrections to cancel an RFP for a state private prison contract.

Well, it’s back, and tomorrow they announce who will get the contract.

Here’s the funny part: not only does the DOC admit that the number of medium security prisoners is not expected to grow over the next few years, but it actually is more expensive to have private companies house prisoners.

The folks over at the American Friends Service Committee have been tracking this nonsense, and have two posts on it (here and here) over at their blog called Cell Out Arizona.

So, we don’t need the beds, contracting to private industry doesn’t save money, and, as the 2010 incident demonstrated, private prisons are a public hazard. It goes to show how injecting the profit motive into criminal justice can warp priorities.

Five companies are vying for the contract including private prison behemoth Corrections Corporation of America, a company known as La Salle Corrections that runs escape-prone prisons in Texas and Louisiana and…wait for it…Management and Training Corporation, the company that ran the prison that had that infamous 2010 breakout.

It’s hard to see where the public good fits into any of this.

We Are the State

I posed some questions the other day about the removal of Colleen Mathis and the Republican kvetching about the IRC and I got a response from John Kavanagh. Kavanagh responded with some clap-trap about what Democrats should be concerned about (note: if Democrats ever take, or even seek, advice from John Kavanagh, there is no point in this whole enterprise and I’ll become a beekeeper). Kavanagh never answered any of the questions I posed, of course.

This ain’t about process. Kavanagh may believe that his PhD from NYU means that we rubes in Arizona will believe this lie if he and his colleagues repeat it enough.

You want to know what it’s really about? Check out what the State Senate tried to do back in March.

Craig McDermott and I wrote about this at the time. Lori Klein proposed an amendment that contained language to change the way counties drew their supervisor districts. The bill would have mandated that counties draw their districts by a committee composed of the local supervisors (three in some counties, five in larger counties) plus six appointees picked by the governor, senate president, house speaker and majority leaders of both houses. In other words, the committee in each county would have been dominated by Republicans to the liking of the legislature.

By the way, the language contained a sunset that guaranteed that only Jan Brewer and this legislature would have the power to draw the lines. That was probably about protecting the process, right?

There was little obvious need for this, but the senate approved the amendment and it passed 20 – 9. Every Republican voted for it except for one recorded as not voting. The bill ended up never getting heard by the house.

It is pretty obvious what they were trying to do then. They wanted to have total control over the process. Given this record, how can we be expected to believe that this is about anything else than a power grab?