A judge refused Tuesday to temporarily block a new voter-approved tax on high-earning Arizonans designed to boost school funding, finding that the Republican lawmakers and others who sued have not shown they are likely to win their argument that the new law is unconstitutional.
Maricopa County Superior Court Judge John Hannah Jr. rejected three separate constitutional challenges brought by opponents of Proposition 208. The challengers include the Republican leaders of the Arizona Legislature.
Hannah last month rejected another constitutional challenge, finding that a provision that bars lawmakers from using the new tax to replace other school funding was legal.
In Tuesday’s ruling, Hannah said opponents fell far short of showing they would prevail or suffer irreparable harm if he didn’t immediately block the new tax.
In one issue, Hannah rejected arguments that the measure needed a two-thirds vote to pass, as do tax increases enacted by the Legislature. That argument “is too weak even to raise ‘serious questions’ that might justify preliminary relief if the other factors weighed strongly in favor of it,” he wrote.
The constitutional amendment that requires lawmakers to get a supermajority clearly does not apply to voter initiatives, the judge said.
“Perhaps the drafters … would have thought it a good idea to require a two-thirds majority vote for tax increases by initiative, but they simply did not say that,” Hannah wrote. “The courts would have to read that requirement into the law and operationalize it by judicial fiat. That would literally be ‘legislating from the bench.’”
Another challenge questioned whether the new tax money, funneled through a special fund doled out to schools to pay for increased teacher and other pay, would put schools over a legal spending limit. Hannah said there has not been enough evidence presented to answer that question. Because opponents’ ability to prevail once that evidence is presented is unclear, Hannah said it would be improper to block the tax.
Hannah also rejected a legal argument that the measure does not have its own funding source to cover implementation costs, as the constitution requires. Hannah said Proposition 208 clearly does have its own funding source, and he rejected the injunction request, saying “plaintiffs have no chance of prevailing on their argument that the Proposition 208 income tax surcharge is not a sufficient revenue source …”
Hannah’s rejection of all four injunction requests can be appealed, and when possible appeals are over, a full trial is expected on the remaining issues. It could take years for the case to be completed.
Proposition 208, which voters passed in November, imposes a 3.5% tax surcharge on income above $250,000 for individuals or above $500,000 for couples. Supporters say it could raise about $940 million a year for schools, although the Legislature’s budget analysts estimate it will bring in $827 million a year.
The measure was an outgrowth of a 2018 teacher strike that resulted in educators getting a 20% pay raise over three years — but did not meet their other demands.
Garrick Taylor, spokesman for the No on 208 campaign that joined the challenge to the initiative, said the case may ultimately end up at the Arizona Supreme Court. He declined further comment, saying he hasn’t had time to discuss Tuesday’s ruling with the attorneys on the case.
Roopali Desai, an attorney who represents the groups that proposed the ballot measure and worked to defend it in court, said she fully expects opponents of the measure to continue the court fight.
“I think that this group is so vehemently opposed to the legislation and the will of the voters that they will do anything to stop it,” Desai said. “But an appeal at this juncture is I think very unlikely to succeed, and from a legal perspective would not be legal advice that I would ever give my client.”
Republished with the permission of the Associated Press.
