Budget Stalemate

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The Arizona Supreme Court decides not to force lawmakers to send Governor Jan Brewer the budget bills they have already passed as long as they do so by June 30th. ASU Law Professor, Paul Bender talks about the decision.
See the Supreme Court oral arguments


Justice Michael D. Ryan: What injury has the governor suffered at this point given the legislature has not passed a budget bill until June 30th?

Joseph Kanefield: Your honor, the governor has suffered a particular injury as explained in the petition. There for the constitution clearly says when a bill is finally passed it shall be presented to the governor. By not presenting, she is not able to perform the constitutional duties required under the constitution.

David Cantelme: I think it's been recognized or at least discussed if she wants to sign the bills, why are we here? We will adjourn and give her the bills and get them signed today. That's not a problem. What she wants to do is veto them because she thinks it gives her a political advantage in the negotiations that are taking place.

Justice W. Scott Bales: Isn't it also true that the reason the legislative leaders don't want to give her the bills because they think it's political leverage in the budget negotiations?

David Cantelme: Absolutely, your honor, it's a tool they are given and they want to exercise it.

Ted Simons: HERE NOW TO TALK ABOUT THE CASE AND TODAY'S ORAL ARGUMENTS IS A.S.U.'S LAW PROFESSOR, PAUL BENDER. Always a pleasure, thanks for joining us. Are you surprised by what happened today?

Paul Bender: Yes, somewhat. Although I thought they wouldn't take jurisdiction. They took jurisdiction and didn't give the governor the relief she wanted. They held that what the legislature is doing is unconstitutional. They have a constitutional obligation to send the bills to the governor when they are finished with them and finally passed the language. She was right on the law. They said it was a case of first impression and there are five days left and they say they are doing it on the 30th. What's the difference really? We get back then the second because I was surprised by that. So we're not giving her relief here. I think they are saying in the future the constitutional rule is you have to send it to the governor when you have passed it. I guess they are threatening to enforce that constitutionally. That surprised me that they would get in the middle of that political dispute.

Ted Simons: You mentioned first impression. That phrase means we haven't seen it before and if we see it again, we will do it different?

Paul Bender: Yeah. Both sides in good faith could believe they were right and the governor could believe they were right and the legislature has been acting unconstitutionally. They said to the governor, you're right. You don't get relief. It's only five days and they were in good faith so we're not going to make them do it. That seemed to me to be a non sequitur. She was asking for them for five days early and now she has to wait for the 30th. The relief she wanted was to have a few days in order to veto them and negotiate them after that. They denied her that relief and she's not going to get them. She doesn't have the right before the 30th even though they said not to give her the bills now.

Ted Simons: The court agreed with the governor as you mentioned save for the unique circumstances. The unique circumstances were?

Paul Bender: It was a case of first impression. That's the main uniqueness of it. It's never been a case like this before. It's unique. They have never had a case like this before and each side was acting in good faith.

Ted Simons: The governor wanted bills by 5:00 today. She's not going to get them. The governor also was saying, you know, this was usurping her power in the executive branch. Did the court agree with that?

Paul Bender: They didn't say they usurped her power. I think they are right the constitution says when you pass a bill, you're supposed to give it to the governor. You can take time to complete the administrative duties and sign it and package and collect it and send it over. That's a short amount of time and once you pass it, you have to send it to the governor. In this case you didn't do that so you operated unconstitutionally but we're not going to give her the relief she wants because you acted in good faith and it's only five days. Why should we get involved? That's what surprised me. If she has a right to them, she has a reason to want them now rather than five days from now. Why are they denying her the relief that she's entitled to?

Ted Simons: If it's five days okay, so what it is 10 days? 7 days? What is it?

Paul Bender: In the future if this happens and the governor comes to them, they will give her or him relief. So in the future they are saying hey, when the bill is passed, you got to send it to the governor. If it happens in the future and they don't and a governor in the future I think would get an injunction and get the bills.

Ted Simons: Technically this is a political not a legal issue. This as a political issue they 5 didn't necessarily buy it.

Paul Bender: They didn't buy it at all and said it was a legal issue and resolved it and didn't give the relief that they would have given normally and resolve the legal issue in her favor. It was a strange opinion.

Ted Simons: When finally passed, they had concerns about the particular phrase. What do you think the phrase means?

Paul Bender: In most cases it's clear. Each house passed it. It's finally passed. Occasionally, apparently, they have reopened the bill after they finally passed it. It's hard to know when something has finally passed and the legislative said, no, we still want to work on it. This is in the opinion, now that they have laid out the rule, they have made it clear that the legislature can get away and manipulate it by not passing it. They can say we are passing a straw vote and get to it when we want to or they can say we will postpone the real vote and take a vote now and do the real vote later. They can leave up to the vote and know they have it and not take the final vote and probably other ways they can do it that I'm not thinking of now. It's an interesting thing. It's a rule but it's not a rule that they are really going to be able to enforce because they recognize in the opinion that the legislature it can if it wants to delay sending something to the governor just by not doing the formal things it needs to do to pass the legislation.

Ted Simons: If you were on the bench and you were there and passed this, would you say no jurisdiction or the governor's argument has enough merit to compel the legislature to get the bills over to her?

Paul Bender: You asked what I would have done if I was on the court?

Ted Simons: Yeah.

Paul Bender: I think it's a political question and the court should not get involved. Ultimately they have to decide if it's a legal question when the thing is finally passed. It might seem easy to do. I don't think it's all that easy. The legislature can do all the manipulating to pass it and not finally pass it and I'm not sure that the a court wants to get involved in that if the legislature passed it. I think it's a question of the timing of the legislative process and up to the legislature and the governor. They could wait to pass it and wait until the 30th to do that. Since they can do that, what's the sense of telling them, hey, when you pass it, you have to send it. They will wait to pass it and find some way to do it. It's a strange decision. I think on the surface it looks right but the governor must be kind of confused because she won but she lost.

Ted Simons: Indeed. Thank you for joining us.

Paul Bender: Nice to be here.

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