Journalists’ Roundtable 10/16/15

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Three local journalists will discuss the week’s big stories

TED SIMONS: Coming up next on "Arizona Horizon Journalists' Roundtable," a state law restricting how doctors can prescribe abortion-inducing medications is overturned. And the state school's chief threatens another lawsuit against the board of education. 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 Journalists' Roundtable." I'm Ted Simons. Joining us tonight Mary Jo Pitzl of the "Arizona Republic." Howard Fischer of "capitol media services." and Luige del Puerto of the "Arizona Capitol Times." And Arizona abortion medication law was overturned this week. The law passed in 2012 and restricted the prescription of abortion-inducing medication. Was this court ruling a surprise at all?

MARY JO PITZL: No, I don't think so. Anybody who followed the roll-back abortion rulings that have come out of -- legislation that has come out of the state legislature in recent years would not be surprised. The drill is usually more restrictive legislation gets passed, signed into law and is challenged in court and it is usually held up in court and this is the latest example.

HOWARD FISCHER: What happened, the judge said that the legislature basically screwed up. The idea, legislature said that you can only use RU 46, this abortion pill, as prescribed or allowed by FDA labelling, which is fine, but the judge said, the Arizona constitution says the legislature can't delegate its authority to anyone else. Since the FDA could change the labelling at any time, the judge said no you can't make the FDA responsible for Arizona law.

LUIGE DEL PUERTO: Concept called a changeable standard, court said basically that means when the FDA changes the protocol on this particular drug, presumably that protocol would now apply here in the state. If that's the case, the court said that is unconstitutional delegation of authority. Then your law is suddenly changing depending on what the feds decide later on.

HOWARD FISCHER: What's interesting, theoretically the legislature could get around that by simply saying RU 46 is only useful through seven weeks leaving out the FDA, but there's parallel case in federal court on the same law that deals with the issue is is this an unconscionable and unacceptable restriction on the rights of women. The 9th circuit issued an injunction on law based on that, injunction that the U.S. Supreme Court has upheld. Assuming that this case got overturned or the legislature found a way around it, the law is still in trouble.

TED SIMONS: Bottom line is the court basically saying that the legislature can't tell the FDA how to prescribe drugs?

MARY JO PITZL: Yeah. Yeah, that's one way to look at it. I think it is questionable if -- if there is any sense in trying to make another run in redoing the legislation in a way that might be legal.

TED SIMONS: Case regarding doctors telling patients that abortions can be reversed, where do we stand on that?

HOWARD FISCHER: Basically about the same procedure. Medication abortions -- there was some testimony at the capitol earlier this year that said look it involves two drugs. RU-46 and then a second drug. If you give large quantities of progesterone, a hormone in between that, you can reverse the process, and they brought in doctors who have said I have done this. Based on that the legislature said you have to tell women it may be reversible. Only problem is there is not a single scientific study to back that up. It's anecdotal evidence. The case was supposed to go to trial next on that and that is on hold. The state agreed we will deliver a preliminary injunction, agree not to enforce it recognizing that we may have problems up the road.

TED SIMONS: It's the plaintiffs that wanted the delay on that.

MARY JO PITZL: This bill just squeaked through the house. It came down to a rather vigorous floor debate and passed with one, two votes to spare.

TED SIMONS: Not the best of weeks for Kathy Hared?

LUIGE DEL PUERTO: Especially on this issue, abortion, we have seen several bills turn into law and later on overturned by the courts. This is not surprising. But I don't -- that it will stop Kathy Hared and the -- and socially conservative lawmakers from trying again. They have been trying each year and I reckon next year they will try something, you know, something new.

HOWARD FISCHER: Well, and the fact is the courts have upheld certain things. Test in the case called Casey U.S. Supreme Court ruled on whether it presents the unreasonable restriction on the rights of women. 24 hour waiting periods have been upheld; requiring a woman to have an ultrasound has been upheld.

LUIGE DEL PUERTO: The doctor's visit, have to go --

HOWARD FISCHER: Do two visits has been upheld. It is interesting that abortion foes, including Kathy, keep trying to nibble away at that. Some states are passing a 20-week abortion ban. We tried that. That has been put on hold. Questions of 72 hour waiting periods and this gets decided on a case-by-case basis.

TED SIMONS: With that all taken into consideration, next session do we see another slew of antiabortion bills --

MARY JO PITZL: Slew might be too strong of a word, but, yes usually it's not a legislative session without tax cuts and abortion restriction bills.

TED SIMONS: Regardless of what the courts say or do we are going to see them.

MARY JO PITZL: There are different ways to go about this where the courts haven't got involved yet.

LUIGE DEL PUERTO: In fact, whole strategy of social conservatives fighting on this, is incremental change. They know they cannot attack ROE V wade directly, at least not here in the state. They are trying to chip away at that. Nibbling at the edges and getting closer to the core of this particular court opinion.

HOWARD FISCHER: And they have been doing parallel attacks. They passed a bill to say that any organization that does abortions, because you can use state and federal money for abortions, any organization that does abortions with its own money cannot also get state and federal money for other services, women clinics, and that was struck down. Now we're going to see a new round of that with the videos, you know, we know that Congress is going to try to do that. This is a broad-based set of challenges.

LUIGE DEL PUERTO: Yeah, and everybody knows that this will all end up in court. If they do something next year, they probably will get it out of the legislature given their influence there but it will most likely end up in court again.

TED SIMONS: Diane Douglas, state superintendent of public instruction is considering suing the board of education again.

MARY JO PITZL: Yes, because she says the board is delaying the work that the department needs to do in certifying teachers. This is part of the stalemate that she has with the board and she was back in court today. I did not go. My colleagues were there. Howie has interesting sound bites I think from the hearing.

HOWARD FISCHER: We are now working on three lawsuits. The first lawsuit, of course -- I have the right to hire and fire the board employees. Judge Star says I don't think so. Second one, back in court today, was the issue where the board sued her because their investigators want remote access after they all fled her offices earlier this year. Judge Anderson, it was interesting, he said, it would be nice if you work this out but let's get back to the views of education and deal with education. The third lawsuit yet to come, she is threatening, because they're trying to hire a replacement for the board's executive director. She is saying, no, title 15, education title says I get to make the recommendations, and the board is saying well, no, we get to do the hiring.

TED SIMONS: And she also is basically threatening anyone who applies for the job saying, you know, if they hire you, I -- you may not be in there for very long.

LUIGE DEL PUERTO: That's exactly right. Basically based on that statute which had been litigated before and now she is saying, look, if you apply for this position, there is a chance you might not have it even if you get it -- if you get it, you might not be there for long. So just be warned.

MARY JO PITZL: Again, this seems to beg -- this -- could some lawmaker come forth in 2016 and write a clear piece of legislation that draws clear lines of authority? That's why we're in court. That's why you have judges lamenting. Can't you get back to the business of educating kids instead of fighting over who has jurisdiction? This could be resolved with a clearly defined law.

TED SIMONS: We should say we thought we had something along those lines last session. There was rumor of that sort of thing and it went puff.

HOWARD FISCHER: It sort of fell apart, different theories, some folks who said this seemed to take away Diane's powers and we don't want to do that. The law is a mess. The law says that the board shall hire staff on recommendation of the superintendent. So, Greg Miller figures, fine, I will put you, Ms. Douglas, on the committee that will make recommendations. She said no, I don't want to be on the committee. I want to make the recommendations. She has made two. Greg Miller, board president said fine we will add them to the other 48 we've got and we will do it on our own.

TED SIMONS: Three lawsuits, third likely coming. That would make three lawsuits. Is this ever going to end?

LUIGE DEL PUERTO: My feeling is it is not going to end any time soon. In fact, as you know, Diane Douglas a couple of days ago laid out her education proposal. Greg Miller, you know, wrote this -- just nitpicking and tearing apart points that Diane Douglas had raised in the -- the point is that they're fighting, there is bad blood and that fighting is going to continue.

TED SIMONS: Speaking of fighting, or not to -- the education law, we keep hearing that the inflation adjust. Education lawsuit, with is supposed to be a settlement and then all of the sudden talks broke off. Now rumors that there is maybe a settlement again. Will we get this figured out? Inflation adjustments for education funding, will those be resolved?

HOWARD FISCHER: The last thing -- two things from the court of appeals. Number one, two to one vote, not going to force the state to cough up the $340 million. Judge said, I would like you to, but, you know, that is not what happens. The other thing that happens is the court of appeals entered into an order saying look normally we want the paperwork by a certain date. Based on the fact that we hear talks are taking place, we will put it off. We will let you guys continue to play with it and that the talks are going on. To a certain extent, if you can keep it simple. It would be great if you keep the attorneys out of the room and, in fact, keep certain lawmakers out of the room, I think you could actually do it.

TED SIMONS: That injunction -- you don't have to immediately pay it. It wasn't saying that you are off the hook for it, just not now.

HOWARD FISCHER: Just not now. Obviously go to the court of appeals, issue a ruling, Supreme Court will stay it and then we have the parallel lawsuit back in the Superior Court on the billion plus dollars. For the moment at least they're talking. They are talking. And the choice of the schools is going to come down what is the best we can do? Their plan A is settle the lawsuit. Plan B is, well, if we can't settle the lawsuit, maybe we will just take Doug Ducey's money and then go from there. And there is money out there.

TED SIMONS: And they are talking, correct?

LUIGE DEL PUERTO: They are talking. The question is whether they would come up with some sort of a settlement -- not settlement, but compromise, some sort of a final resolution, and whether that -- that resolution whatever it may be, whether that would be part of a special session that could happen, might happen, that we know the governor's office is pushing before the next session.

TED SIMONS: Do we assume if there is a special session, if all of the sudden out of a blue a special session is called, do we assume that a settlement has occurred in some way, shape, or form?

MARY JO PITZL: No. No. Because as Howie said, perhaps plan B from the plaintiff's side is that if you can't get the settlement hammered out now, Governor Ducey's got this plan to take money, accelerate distributions from the state permanent land trust, money in hand. Maybe you should take that so that you have that for the coming school year. I don't think you can assume anything. They are talking, but reran into one of the negotiators at lunch and Howie and I were out to lunch and the person wandered in and they can't be at it too hot and heavy if they have time to come out for lunch.

LUIGE DEL PUERTO: And the other thing we're hearing from some members of the legislature is the fact that they do want some sort of a settlement before going to special session. At least having, you know, having some sort of a resolution to this lawsuit before agreeing to special session, which -- which could be problematic, which could happen or not.

HOWARD FISCHER: And part of the problem, you have little outside interests that are nibbling away at the edges. One hand, the children's action alliance is nibbling away at the BIGG's plan what do you mean you are taking money from early childhood development? Maricopa County Republican Party, bless their hearts, vote against every bond issue, every override, because schools do not need any more money. They have to live within their needs. This is the stuff that pulls people out, pulls people apart and makes it hard to come up with a consensus.

MARY JO PITZL: Another point about the settlement, I think there is a strain of lawmakers, subset of them who want this thing -- they think they have a good case in court to dispute how much they need to adjust forward the or upward the base amount and I think we would rather see that play out in court and buys you time.

LUIGE DEL PUERTO: The conundrum they face is if you do approve or pass the -- approve it, you know, next year, the question is what happens when the court decides in favor of the schools? And now you have another $330 million problem that you're facing, and presumably, you know, that could grow depending on what the court does to the other component of the case --

TED SIMONS: There is a lot of whistling past the graveyard here it seems to me. I understand that they think they have a good case, but are walking a pretty fine line there if you don't.

HOWARD FISCHER: Well, obviously, and that's the thing you can never guess what a court will do. Ultimately this is going to wind up, before the Supreme Court. Supreme Court has already ruled once that the inflation formula means what the inflation formula says. You know, you don't get any if, ands, buts. Now we're arguing about the amount. As you say I think for the lawmakers to say oh, that's okay. We're going to be just fine. That's betting on something I wouldn't bet on.

LUIGE DEL PUERTO: And the risk -- risks to both side. Risk for schools is that they will get a smaller amount. The risk for the state is that you are going to be facing a pretty hefty amount that you are going to have to look for. I did a calculation a couple of weeks ago, and you are looking at potentially, if the schools get everything, roughly $2 billion.

TED SIMONS: And where are you going to find that?

HOWARD FISCHER: That's the question. And this comes back to the question we know earlier this year that the schools, school board association made an offer to the state. Give us the $330 million and we will forget about the billion plus. And the state turned it down. You have to wonder, is that still on the table or are they figuring hey, we have won, the heck with you.

MARY JO PITZL: What's interesting in all of this, all of the different proposed solutions, no one is talking tax increase because that's heresy and recent history shows us temporary one cent tax increase, raised about a billion a year, so you know, 2 billion. That measure went through very easily.

TED SIMONS: With a governor helping push it. This governor -- this republican --

LUIGE DEL PUERTO: No, he said that he wouldn't be open to any tax increase. He said that many times.

TED SIMONS: All right. Interesting story this week regarding Tim Jeffreys, Dr. J to you, new chief of DES, and he is quite the evangelist, quite the crusader, quite the fellow.

HOWARD FISCHER: It's interesting, because DES had a reputation even before they broke off the department of child safety of being, you know, a bad place to work, treated people badly. He sort of come in and said we're going to be the kinder, gentler agency and we are going to treat people nicely and address as Mr. So and so and Mrs. So and so. There is a fine line in there between saying we are going to treat people nicely and sort of a religious fervor, and I think that is where some folks may be concerned.

MARY JO PITZL: What's happened with this kindness directed towards the clients of DES, seems like wouldn't you want to be nice to your customers, but Jeffreys has had issues with some of the staff and has let about 70 odd employees go and not just let them go but called them bullies and liars and basically felt like they were dead weight in the agency. We have not heard back from the people, haven't looked at personnel files.

TED SIMONS: Bullies, liars, bad actors and when questioned about it, he basically said goodbye and good riddance --

LUIGE DEL PUERTO: You mentioned evangelist, something like that -- you can sense in the videos, you know, DES has put up several videos and he talks about being -- he has -- he uses pastor's language. He talks about how you have to be good shepherds, that you have to be -- culture that they're trying to create over there, discharge our humble duties. Clearly his faith is showing an he is not shy about that.

TED SIMONS: Any tangible impact as of yet?

LUIGE DEL PUERTO: It is early to tell yet. He has been there for a couple of months. If he can change the culture at DES and make it into what he wants it to be, kinder, more humble place, surely that would have a huge impact in how we deliver services.

HOWARD FISCHER: But if it suddenly becomes almost a religious test, now you're getting into very, very tricky territory.

TED SIMONS: Speaking of tricky territory, Russell Pearce, I mean, he is no falcon 9, but he can't stay off of the email and the internet. What is he doing over there at the county.

MARY JO PITZL: Or the catwalk.

HOWARD FISCHER: Well, Russell has strong opinions, as we have all known, and whether it's about taxes, school overrides, immigration, you know, I have been on his email list for a long time. Cox.com account. His problem is that he doesn't seem to be able to separate his Cox.com account from the one that belongs to the government. There are rules against that. Russell, behave --

TED SIMONS: Work for a treasurer -- talking about illegal immigration enforcement. He wrote an awful lot. Apparently this elderly assistance program he is running must be in great shape because he has a lot of time to be writing these --

LUIGE DEL PUERTO: One of the headlines says, write this during lunch break -- you know, Russell is being Russell. I don't think he can help himself. He is very opinionated. The fact of the matter is he has clout. He is out of the legislature and the capitol but he has followers and people who see in him a leader and who think that his ousting a couple of years ago was unjust and still believe in whatever he has to say. To a certain extent he has followers, and that's why it is interesting.

MARY JO PITZL: But that doesn't excuse you not following the rule of law? How many times have we heard the rule of law --

LUIGE DEL PUERTO: Of course, it doesn't -- you're right about that. Interesting point is that, you know, I think we wrote a law a couple of years ago if you are working for the state government, for example, or in the case of teachers, you're not supposed to use the resources of the school district for political reasons. And in a way this applies to him. And in that email, he mentioned -- he talked about a dozen or so more policy issues on, you know, a wide variety of issues, and some of them are contrary to positions, you know, by the county. He talked about for example, you know -- how those should not go to local governments. Counties and cities rely on those for a large part of their general funds.

TED SIMONS: The idea, no illegal, inappropriate, obscene, political or personal gain purposes for -- what is it about that that he doesn't understand?

HOWARD FISCHER: Russell sometimes lets his emotions and sometimes his mouth and his fingers get ahead of his brain.

TED SIMONS: The county has advised him along with his boss Charles Hoskins by the way, these are the rules.

HOWARD FISCHER: Mr. Hoskins himself fired off a little letter to dear homeowners saying, you know, here is where the legislature is screwing you.

MARY JO PITZL: That got a little political, didn't it?

TED SIMONS: Yeah, yeah. Randy Pullen, what -- again, what did he do?

HOWARD FISCHER: Well, this is one of those things --

TED SIMONS: Former Republican Party chairman here in Arizona.

HOWARD FISCHER: He ran for state treasurer. He lost in a three-way primary last year. Randy -- this is a problem with people who let their fingers get ahead of their brains and Randy thought he was being a little bit of a smart guy. And doing the democrat debate, tweeting out and talking gun control and he is saying well, okay, so if the problem is blacks being killed by blacks, let's take away the guns from blacks. You read that on the surface and you say, Randy, you know, hello? What planet are you from? He insists, Mary Jo talked to him, I talked to him and what I really meant to do was sort of poke fun at their position of gun control. You know, read what you sent. You know that little send button --

TED SIMONS: When you have to start your response with what I really meant to say -- that's not a good thing.

MARY JO PITZL: No, no. This is a tweet that went out in the middle of a debate, heat of the moment, and, yeah, he is just saying that he didn't quite get understood because he -- his point is that taking guns away, guns aren't the thing that make us unsafe. It is people who do not behave properly. You could take -- he was trying to make fun of that --

HOWARD FISCHER: It still comes down to the issue, look, we all do this. I mean, the good news is for our news stories we have editors and other folks. We are all tweeting and sending out little Facebook things. It is that count to 10, breathe deep. How can this be read? Somebody who wanted a statewide office should know better.

MARY JO PITZL: And also --

LUIGE DEL PUERTO: Or just go get a Twitter conscience and ask a colleague, what do you think of this?

MARY JO PITZL: People don't slow down on Twitter, are you kidding me? What -- Pullen a former executive with the national -- with the republican national committee, their treasurer as well. He had a higher profile role. He -- those are now in his past.

TED SIMONS: Last question on this and you mentioned, you know, Russell, some people still follow Russell Pearce at the capitol. What kind of pull does Randy Pullen have? Led the state republican party, that should have something, right?

MARY JO PITZL: Well --

TED SIMONS: Not much anymore.

LUIGE DEL PUERTO: I don't think so. If he won the treasurer's race, for example, still chairing the party, for example, he would have some pull. I don't think he has a pull as big as for example Russell Pearce.

MARY JO PITZL: He stood with Governor Brewer on some of her more controversial proposals on the sales tax increase, Medicaid expansion. Stood with her in support of that which angered a lot of the base. I don't think he has that kind of influence.

HOWARD FISCHER: And not after this tweet anyway

TED SIMONS: Again, this tweet may offend some but there are others who might go yeah.

HOWARD FISCHER: That's the problem, you know, they probably didn't want him to explain it and they probably said no, he was right the first time.

TED SIMONS: Stop it right there. Good to have you all here. Thank you for joining us. Monday on "Arizona Horizon," we'll discuss Nebraska's open primary system and how it might work in Arizona. And we'll hear about a Peoria health care facility with a healthy indoor environment. That's Monday at 5:30 and 10:00 on "Arizona Horizon." That's it for now. Thanks for joining us. You have a great weekend. MM Captioning Performed by LNS Captioning www.lnscaptioning.com

VIDEO: "Arizona Horizon" is made possible by contributions from the friends of eight, members of your Arizona PBS station. Thank you.

Mary Jo Pitzl, Arizona Republic; Howard Fischer, Capitol Media Services; Luige del Puerto, Arizona Capitol Times.

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