Journalists’ Roundtable

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Three local journalists will discuss the week’s big stories.

Ted Simons: Coming up next on "Arizona Horizon's" Journalists' Roundtable. The supreme court hears about same-sex marriage bans and questions continue over renovation plans at the state House of Representatives. The Journalists' Roundtable is next on "Arizona Horizon."

Video: "Arizona Horizon" is made possible by contributions from the Friends of Eight, members of your Arizona PBS station. Thank you.

Ted Simons: Good evening and welcome to "Arizona Horizon's" Journalists' Roundtable. I'm Ted Simons. Joining us tonight: Jeremy Duda of "The Arizona Capitol Times." Howard Fischer of "Capitol Media Services." And Jim Small of "The Arizona Capitol Times." Trust me, they are all here.

Ted Simons: All eyes this week is on the U.S. Supreme Court's consideration of same-sex marriage bans. Jeremy, we'll start with you. Give us an indication, what exactly did the Supreme Court hear?

Jeremy Duda: Well, this is the case that everyone has been waiting years to see, the Supreme Court finally hearing, you know, this challenge to these same-sex marriage bans that so many states have and have been overturned in so much of the country due to appellate court regulation. One appellate court upheld them and that's what they were deciding or they're to hear on Tuesday, over equal protection grounds.

Howard Fischer: And there's two issues out here. And it suggests we could have an interesting split opinion. Number one, can states define marriage constitutionally? Is this a state's right issue? Is this something the federal government has anything to do with? Is there a 14th amendment equal protection argument? The other becomes a more interesting interstate commerce argument almost, which is if a couple legally marries in California and moves to a state where it's not recognized, say Kansas, does Kansas have to recognize that contract which was legal in California?

Ted Simons: Which was kind of considered by some Supreme Court watchers as a compromise possible saying states can do what they want but if one state says yes, you've got to recognize it. Seems a little odd.

Jim Small: It does and it may be a difficult thing to thread that needle in a way that makes legal sense and, you know, it is an interesting question. Certainly if a state -- if a state is allowed to not let same-sex couples marry but is forced to recognize those unions and adapt its laws to reflect that, what's the point? And on the flip side if they say that they're allowed to marry, but they're not, they don't have to be recognized which I think is not an argument they couldn't do, then it makes you wonder what's the purpose of even getting married?

Howard Fischer: And the thing is there is some precedent. In some states, first cousins can marry. In Arizona they can marry if they're over a certain age. If you have a state, somebody coming to Arizona where a first cousin can marry, Arizona does recognize. In fact, when we passed our laws dealing with not recognizing other states, we said we're going to recognize all other marriages, except this particular category. So there is some precedent for that interstate compact argument.

Jeremy Duda: We heard one argument that kind of hasn't been heard, but that Chief Justice Roberts mentioned, but this has always been that 14th Amendment issue, equal protection, whether these things are discriminatory against gays and lesbians but the issue that Chief Justice Roberts raised, is this just a straight up gender discrimination issue? If a man can carry a woman, why can't a woman marry a woman? Is it discriminating because they're gay or based on their gender? That's a way where Roberts, who is always expected to side with the advocates of the bans, one way he may be able to go the other way on this.

Howard Fischer: One of the interesting things that's in the court's mind is how far ahead of the public do they want to get? We go back to Roe Versus Wade. And here we are decades later, the court having decided that abortion before viability is legal, still arguing that and does the court want to get out that far in front of the public?

Ted Simons: Does the court also want to okay the bans after it halted the bans leading up to the consideration?

Jim Small: Well, and I think that that's one of the issues that makes a lot of people think that the court, and it's why you would be hard pressed to find legal scholars or legal analysts leading up to this who thought that the court was going to uphold these bans, because they had several opportunities to stay some of these appellate court rulings and they didn't and they let hundreds of thousands of marriages across the country effectively go through. 37 states now where either the people or the legislature or the courts have said that no, these marriages need to be allowed.

Howard Fischer: Let's go a step down the rabbit hole here, which is if the court -- could the court say okay no more new gay marriages in states like Arizona which has a constitutional amendment but we can't unmarry these people, they have formed a contract. Now, do we have a different equal protection argument? You open up some interesting legal possibilities.

Ted Simons: Ruling expected this summer. The impact, though, in Arizona regarding adoption, religious freedom as its described, discrimination protection? What are you expecting out there?

Jeremy Duda: If they uphold the gay marriage bans, the impact here is pretty obvious but if they rule these are unconstitutional, and the status quo here is allowed to stand, then you have so much in Arizona statute you have to start unraveling. You mentioned adoption laws which Governor Ducey started making some executive orders as a work around but if you look at the rest of our statute, anything that deals with marriage or a married couple, tax statutes, for example, refer to a husband and wife and all through Arizona, revised statutes, husband and wife, man and woman.

Howard Fischer: But that's the thing and I heard you try to get a straight answer out of Mr. Brnovich last night. On the one hand he's saying I want to wait for the Supreme Court but he cites 8-103 which deals with adoption and it says a man and a woman may jointly adopt. Well, okay, my non-attorney reading of the law is that's no longer meaningful any more than the old Constitution used say only men can hold office. That obviously got superseded. I can see him making an argument, even assuming the Supreme Court says gays marry that until we litigate each and every piece of this, he's going to be in this rearguard action.

Jeremy Duda: And this precedent before, we spoke with Paul bender last week and he was talking about loving versus Virginia, the case that got rid of interracial marriage bans. There were so many laws on the books in these states that relied on that definition of marriage as being two people of the same race and they didn't change a lot of those. They just assumed they were automatically changed in a lot of cases.

Ted Simons: Supreme Court also this week heard a lethal injection case not involving Arizona but involving an Arizonian arguing the case. Talk to us about this.

Howard Fischer: The issue is the court has always said lethal injections are okay. Executions are okay. They've turned away various bans. Arizona uses a protocol as does Oklahoma which the first injection is supposed to put the person to asleep and make them impervious to pain so that other two injections which really do irritate the inside. They can burn the inside of the body, are not felt. The question becomes do we know this? We've had a couple of botched executions, one here and one in Oklahoma where people didn't die right away and there were indications that they were writhing in pain. We can have a philosophical discussion over whether writhing in pain is appropriate. One state allows the firing squad. But if we've made the policy decision that the only purpose of putting people to death is to keep them out of society, and it's not to punish them by one last bit of pain, then we have to decide are these drugs appropriate?

Ted Simons: And we should mention that this one particular drug is being used because previous drugs that were more effective and more efficient, if you will, the makers are saying we don't want you using this anymore. This drug company is going to say the same thing. What's going on here?

Jeremy Duda: It's gotten harder and harder. So many companies don't want to be associated with it. A lot of them have business in the European Union which will ban you if you provide drugs for executions, executions in Europe being illegal. States have tried to find so many ways around this inability to get drugs, compounding pharmacies are trying new mixes, new drugs, which is how we ended up with the one that's before the Supreme Court this weekend. You're starting see a few states say well, we got to start looking for alternative methods here. Howie mentioned the firing squad, Utah they went back to that as a condition if they can't get the lethal injection drugs they need. Oklahoma now is looking at kind of an alternative protocol where they use nitrogen gas I believe.

Ted Simons: So do we expect Arizona -- to what?

Howard Fischer: A lot of it, obviously, we're all like this one, sometime by the end of June we'll have a ruling on this. If the Supreme Court concludes that there is a violation of the eighth amendment, prohibition against cruel and unusual punishment, then it says to the state okay, you can't use this drug. Okay. Now, we're down to your question, which is what's left? Now, there is still a gas chamber on the books in Arizona. And so does that become the alternative? You may remember the last gas chamber execution we had before we went to execution we had people coming out of that saying that there are better ways to put down animals because of the particular suffering there. Do we end up with another set of lawsuits?

Jeremy Duda: I'm surprised that we haven't started looking at alternatives. The drug that was before the Supreme Court, we put everything on hold after last year's botched execution. They said we're not going to execute anyone until we figure out what went wrong and how we can make sure it doesn't happen again.

Ted Simons: Can this get traction down at the legislature? Somebody going to pop this up and say we better consider something?

Jim Small: We'll know before the next session what the Supreme Court has ruled and whether Arizona's current path gets a road block in front of it or not. If it does I'm sure we'll see some kind of alternative, either coming out of the department of corrections, they'll have a new method, develop a new protocol, but there may be an option that comes to the legislature.

Howard Fischer: Again, assuming that the fallback position is the gas chamber, you may even find folks who are proponents of the death penalty saying well, if we're going to keep executing people, should we perhaps be more humane, or conversely you have folks saying we'd like it to be as painful as possible for the public to see how we're doing this and maybe it'll build some oppositions toward the death penalty.

Ted Simons: Alright we'll wait for the Supreme Court on that one. Howie, the governor believes the climate is changing but he does not believe or is skeptical of manmade causing?

Howard Fischer: This is the governor finally waded into this perennial fight here about is there such a thing what used to be called global warming and has been made climate change because that sounds a lot better according to Republicans, and I think he's conceded after looking at evidence and being briefed by folks from the State Forestry Division that yes, in fact, the climate is changing. Now, why is it changing? There are people who will say well look, we had the Indians who lived here for years and their climate changed and they had to go away. This is a very pro-business governor, and I think he sees anything that links human cause, I.E. perhaps carbon dioxide from coal-fired power plants and the chief source of power or automobiles, as being bad for business and therefore, he's not quite ready to say we should be doing something about this.

Ted Simons: Bad for business but what about the reputation of the state? Does it play into any of this? This makes headlines, the governor of Arizona, I think the quote was skeptical about what human activity has to do with it.

Jim Small: I don't know. Is anyone really surprised? I wasn't. It's kind of a mainstream Republican position at this point is that, you know, it used to be there is no global change, temperatures aren't going up and that's evolved into yes, it is but... Prove that it's because of man, and then it's not something natural, that it's not because of, you know, either cycles or solar flares or whatever the case is. And so it's trying to deflect the argument to basically say you have to convince me that this is right and you have to show me something that's 100% I guess 100% proof, which, you know, it's moving the goalposts on this issue, and it's a way to deflect away from having to do anything by saying I don't believe there's anything that we can do because it's not our fault.

Ted Simons: I think I understand it's a mainstream position for Republicans or certain folks on the Republican side. However, it's not a mainstream scientific position and if you're looking for this new technology, the new economy, the brightest of minds, this, that and the other, how are they going to take this?

Jeremy Duda: What do scientists know anyway? Ask the people who don't want to be regulated. We would have been stunned if Governor Ducey had said anything differently and it's kind of a moot point because even if Governor Ducey said I think this is caused by people, we should do something about it, what's going to happen in Arizona? You've got a very conservative legislature who feels the way he does on this issue and this is not going to do anything.

Howard Fischer: And there were a lot of other things keeping business away, including our investment in K-12 and universities and some of the rest of that. It's not like this is going to be the thing that keeps us back.

Ted Simons: I'm wondering if that was even a possibility.

Howard Fischer: This is consistent with his message. We're deregulating, it's sort of like we don't need regulations of Uber and all the rest of those things, I'm your governor.

Ted Simons: We should mention the forecast for the fire season. The high country relatively normal but down to the desert and the brush, looking bad.

Howard Fischer: A lot of rain, a lot of moisture, and what happens is the grasses and, all of a sudden, we haven't had any rain in a while, guess what happened to the grasses? And then the tiniest little thing, including -- we've seen this, I've been following, you know, trailers being towed by trucks up a hill and you see that chain dragging along the ground and creating sparks and you know something is going to happen.

Ted Simons: The Medicaid expansion case, a little bit of a movement here in that the idea of the access director speaking up for all those who could be jeopardized by this expansion not happening didn't sit well with the Maricopa County judge.

Jeremy Duda: The Arizona Center for law in the public interest which was the mainstay in lawsuits against the state for decades, they asked the superior court judge to allow four of their clients, four childless adults receiving access benefits to intervene as defendants. They said he serves at the pleasure of Governor Ducey who is not a big fan of Medicaid expansion. He's kind of split the middle, toed the line, hasn't done anything to get rid of it but has made clear he's not a fan of that. Now, the center managed to unify the defendants and the plaintiffs, and the Goldwater Institute who said you should not be allowed to intervene, we can handle this on our own. The judge disagreed and said you have a point that this guy serves at the pleasure of the governor, he's now defending a policy of his old boss, not his new one and she said they will be allowed to intervene.

Howard Fischer: A key point about the Goldwater Institute because the governor has brought on as a health advisor somebody from the Goldwater Institute who has done treatises about why it's bad, why Obamacare is bad and so you've got to wonder if this is the person whispering in the governor's ear about Medicaid expansion and she was with the group that is representing the lawmakers who sued, you know, how vociferous is that defense of the law going to be?

Ted Simons: There's divided loyalty here. He helped craft the dog gone thing with the previous governor and he's serving at the pleasure of a governor who doesn't like what he crafted.

Jim Small: That was an issue here and I don't think any of us are trying to say he's not going to defend it but I think it exists the possibility that at some point in the future, the governor's prerogative could change and I think that was really the point that Tim Hogan was making when he was trying to get these defendants on board, and the judge obviously saw some wisdom in that in ensuring that the defense of this law is able to be made by -- if not by the people who are in charge of administrating the law then by the people who are affected by it.

Howard Fischer: That was exactly what the judge said. She said they are defending their healthcare because if for some reason, even if Betlock does his best and it goes against him, somebody's going to say wait a second, if we're defending our own healthcare through the center for law, now, we can say we're going to do the most vigorous defense, we're going to raise every possible issue here, whether it's the Constitution, whether it's a tax, an assessment, a two thirds vote, we are going to raise every defense possible.

Ted Simons: And that is what the case is about, regarding whether or not an assessment is a tax and whether the Republicans, 36 some odd Republican lawmakers were usurped by way of this particular action.

Jeremy Duda: Proposition 108 from the early '90s which says any tax needs a two thirds vote. This passed with a simple majority.

Howard Fischer: It's not a tax, don't you understand? You weren't listening to the governor. It's a voluntary kind of assessment, a squishy thing.

Ted Simons: The renovations at the state House of Representatives do not include a gym with showers in the basement.

Howard Fischer: This has been an ongoing, fascinating question when we asked the speaker about renovations and he said I don't know nothing about no stinking renovations and the Cap Times has done a great job of pursuing this and saying well wait a second here, you know, they're concepts, so show us the concepts, we can't show you the concepts. In fact, you know, Jim who did a public records request here and take a look at what they sent.

Ted Simons: What are we looking at?

Jim Small: The basement.

Ted Simons: I love that.

Howard Fischer: Because of the fact that somehow if we know where the doors are and the light switches, security will be breached. This is the kind of teeth pulling we've done. The speaker got caught doing something that his own members didn't want him to do, spending money when they just cut K-12 education, bad optics and everything else, now he's real defensive about it.

Ted Simons: Spending money when he just spent money on other renovations.

Jim Small: And today, moments before the show began, about an hour before, the house gave us a statement that said we're not going to spend all this money. All we're going to do, we're going to scale back this project, anything that had been discussed, not plans that were concrete but anything that had been discussed, the only things that are going to happen, they're going to replace some carpet and in doing so when they take that carpet up, there's going to be some exposed asbestos floor tiles, those will be taken out. We don't know what the cost of that is going to be. We've got some documents from the department of administration today that showed the actual estimate for the project, originally we had heard that it was going to be about a million dollars. Could never get that confirmed from Speaker Gowan's office. The DOA's estimate is $2 million. $1.6 million for the basement and another $300,000 for some other renovations, for the asbestos stuff. So essentially, what we were told by the house today is we don't think that the department of administration's estimate for the asbestos is quite right. And we hadn't signed off on this, we would have, the speaker absolutely would have signed off or would have had a chance to say no, put my foot down.

Howard Fischer: Oh, come on, look. When 18 of 36 house Republicans, leaving the Democrats aside, send a letter to the speaker saying what the hell are you doing? You know, even he needed a way of backing away. I love how he threw his chief of staff under the bus. I had nothing to do with it.

Ted Simons: A lot of folks under the bus or into the showers or whatever the case may be, he's not really backing down on this, is he?

Jeremy Duda: He kind of is now and this seemed like the only way to go. After a week of, you know, looking like they were going to go full steam ahead, today they're finally, you know, backing away a bit because there's so many angry people over there and they've done a lot more work laying the groundwork for this than they had also made clear they had been talking about contractors, exchanging e-mails, people wondering I'm seeing this in the news, getting bad press, do we have a deal, are we moving forward? What's going on?

Ted Simons: So where do we go from here? Are we going to be able to work out and take showers in the basement of the state House of Representatives. It is the public's house.

Jim Small: Maybe you can run laps in the hallway but I don't think there's going to be a workout facility. Certainly, no showers. Wash yourself in the sink.

Jeremy Duda: No multipurpose room?

Howard Fischer: I've been covering the house since '82 and it's been remodeled six, seven times. It's one of these late 1950s block structures, no imagination, you try to fit 60 members plus all their staff in the same sized building that fits 30 senators, there have been various plans to go ahead and build a new capitol, tunnels going to the old capitol and everything else. At some point something is going to need to happen but you don't do this on the heels of cutting $99 million from the universities and basically telling K-12 education to suck it.

Ted Simons: Okay. Corporation commission is really, you know, elections a year away. A lot of folks are nosing around.

Jeremy Duda: The last election is only six months in the past doesn't mean we can't look ahead to the new one. Three corporation commission seats up for grabs and even though only one of those seats is going to be open, there's seven Republicans so far who are looking at that one empty seat and I don't imagine they're going to get in but we're hearing so far Ken Bennett, the former secretary of state, representative Rick Gray, Rick Gray's wife, a few others.

Howard Fischer: Let's understand part of the reason. You want to know why lawmakers go to the corporation commission? It's a scam, it's called the elected officials retirement plan. And you're given, if you serve for 20 years, you're given 80% of your highest three-year salary. So you could have served 16 years at $24,000 a year, and go corporate com and serve at $75,000 a year and you walk away with 80% of $75,000. That's why they're all interested in this. It has to do with money.

Ted Simons: Is this going to be a bloodbath? A lot of folks on the same side of the aisle.

Jim Small: I think there's almost certainly going to be a primary. Just from the chatter we've heard there's a number of people who are seriously looking at it and are trying to be pushed or pulled in various directions. Seems hard to believe at this point with an open seat, it's tough to keep people away from that and even if it's just four people, you've got a primary and you've got the potential really in a low-profile race with not a lot of money for the candidates themselves, you could have an incumbent who ends up getting ousted.

Howard Fischer: And the other thing is we're going to have to see what happens to all the aps things given the dark money that they put into this and if aps gets a lot of its way, there's going to be a lot of unhappy voters out there.

Ted Simons: Got to stop it right there. Good stuff. Thanks for joining us. Monday on "Arizona Horizon." We'll hear about efforts to legalize marijuana for recreational use in Arizona. And we'll learn about a new study that looks at officer-worn video cameras. That's Monday on "Arizona Horizon." Tuesday, the latest on moves to block the new tribal casino near Glendale. Wednesday, we'll look at just how much the state's economy is recovering. Thursday, food critic Howard Seftel talks about hanging up his fork after 23 years at "The Republic." And Friday, it's another edition of the Journalists' Roundtable. That is it for now. I'm Ted Simons. Thank you so much for joining us. You have a great weekend.

Jeremy Duda:Journalist, Arizona Capitol Times; Howard Fischer:Journalist, Capitol Media Services; Jim Small:Journalist, Arizona Capitol Times;

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