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What the Devil won't tell you

Judge's ruling on Invest in Ed is long on smirk, short on reality

Somewhere in Phoenix a judge is smirking about how he just shafted the students, teachers and people who think a good education is important in the knowledge economy.

Maricopa County Superior Court Judge Christopher Coury has knocked the Invest in Ed initiative off the November ballot by requiring unworkable requirements and citing as precedent a state Supreme Court ruling I’m not sure he ever read. He refers to elements of it that just aren’t there.

The ruling is perfect for the post-fact, reality-is-fake-news world. It rethinks dictionary meanings and quotes precedent that doesn't exist in a fit of self-superiority.

A couple years ago, I drew some blood from the Invest in Ed crowd for their egregious error of failing to comprehend there is a difference between “percentage” and “percentage points.”

Since I started writing this column in 2015, I've been frothing at the mouth to get schools more money. It was one of my original riffs.

But fair is fair and rules are rules. You can't tell people on a petition sheet your plan is to raise taxes on the rich by 3.5 percent when it's actually 77.8 percent. I know you meant percentage points but the language didn't say "percentage points."

It was a huge screw up.

The Arizona Supreme Court tossed the question off the ballot and rightly so. Those three little letters A-G-E changed the meaning of the ballot initiative and misled voters as to the size of the tax increase.

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It cost the voters in Arizona an opportunity to raise some taxes to pay for more school funding in Arizona. They regrouped and were heading for a new initiative this election year.

Then they ran into Coury's smirk.

Coury has just decided that petition gatherers this time needed to basically cram the whole of the “no” argument into the 100-word explainer on the signature sheets or the petitions would be invalid.

Crafters of the initiative needed 98 words to describe the ballot question’s principal provisions. Coury decided they needed to include a raft of other considerations into the two words they had left as prescribed by state law.

That’s a problem. The bigger problem is that he read into a ruling two years ago a whole bunch of requirements the precedent does not require.

That ruling, Molera v. Reagan, concerned just two problems with the petition that the state’s high court decided. Telling voters you were raising their taxes by 3.5 percent is much different than 3.5 percentage points. The court majority also ruled that the 2018 initiative failed to take inflation into account and failed to adopt “indexing” the top tax bracket to inflation.

That’s it.

More specifically, the 2018 case forced the court to examine the definition of “principal provision.” Very often, this is where I get all defensive because legal definitions vary from “common English usage” definitions.

Coury described the standard set by the Molera decision as an "objective, fact-intensive standard."

OK, seriously dude. You have to pretend to have read the decision at least because this is how the court described them reaching their fact-intensive standard:

The court consulted dictionaries to determine the meaning of “principal” and found that the plain meaning includes “most important, consequential, or influential,”“chief,” and “a matter or thing of primary importance.”

Seeing as they are gleaning it from Webster's and not some opaque legal theory found in a 1927 dissent on a rooster monopoly case, I feel pretty comfortable providing a writer's analysis.

"Primary" is defined as "above the secondary," the term "most important" delineates that there is a less important, which is not the same as unimportant. It's a superlative threshold or a threshold elevated above the others. It is not a minimum standard or even an informative one.

Coury has declared the definition of “principal provision” amounts to “anything that might cause someone to vote no.” Absent attaching a letter from the Arizona Chamber of Commerce and Industry detailing its objection, voters would be too confused to make an informed decision about whether to affix their signature to the initiative to get it on the ballot.

But this is what Coury wanted:

He wanted the initiative backers to include a spending breakdown of how the money would be allocated.

He wanted it made plain that the Legislature couldn’t back out it’s discretionary funding to offset the tax for schools, thereby hamstringing lawmakers who see Arizona ranking at the bottom of school funding nationally as a feature and not a bug of the state.

He demanded that the language include discussion about how some business owners file their tax returns under the auspices of an individual return, therefor it was actually an indirect tax on businesses.

Finally, he expected the language to talk about the ins and outs of local spending limits and how they might be affected.

Then Judge Coury got snotty.

“In 2018, (the the groups sponsoring the initiative) was afforded a luxury few litigants receive: an Arizona Supreme Court decision discussing how to phrase the proposed tax increase.”

This is true. The court used the word "ambiguous" or "ambiguity" eight times in their decision. Fix percent and indexing and the authors of the initiative would have been fine.That's what the ruling said.

The petitions included language referring a 3.5 percent surcharge on incomes over $200,000 for single filers and $300,000 for married couples and heads of households. That's not ambiguous. It's not all inclusive but it doesn't have to be. Fine. Done. Accurate. The Molera ruling was about ambiguity of specific language and not about failure to be all inclusive.

I searched, scrolled, and CTRL+Fed the 2018 ruling but could find neither noun nor verb discussing local school spending limits, funding allocation, business “pass-through” language or legislative withholding of general fund dollars.

So what the hell is Coury talking about? Coury is arguing the Supreme Court left a template that the authors didn't follow. They did. Coury just rewrote it and then got even snottier in his close.

"When a teacher specifically instructs a student exactly how to complete a math problem, and when the student disregards the instruction and does the math problem incorrectly on a future test, should the student receive a passing grade? The simple answer is no.”

What happens when a teacher assigns a Maricopa County Superior Court judge to read "Catcher in the Rye" and the judge's book report details all the explosions and how Rambo kicked ISIS' ass?

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The initiative's supporters are going to appeal, of course, and I wonder how the Supreme Court is going to react to Coury re-imagining their ruling.

The one 'no' vote allowed

It’s clear Judge Coury doesn’t like this initiative, would vote no and wants his reasons included in its description.

I know this because he failed to demand other language to give a broader context.

He didn’t insist that the petitioners tell voters Arizona continues to rank third from the bottom nationally among the states in per-pupil funding.

He somehow forgot to command education leaders to tell voters that even with the $900 million the tax hike is expected to generate, and Gov. Doug Ducey’s recent pledge to increase school funding by $2 billion (dubious heading into a recession). Arizona school funding would still trail the $12,603 per-pupil national average by almost $2,000.

Coury could argue back that those facts may be relevant but they are not provisions of the initiative. Yet he is the one insisting that the voters must be properly informed, so why not include the context prompting the initiative in the first place?

Is it voter awareness he’s after? Or does he just think it’s funny to keep our schools underfunded?

And how in the name of John Kromko does one cram into 100 words anything anyone might find objectionable about a ballot measure?

Coury didn't issue a ruling as much as he voted "no" and is trying to deny anyone else in the state from voting "yes."

Those who smirk today ...

Since Coury is so enamored of the Molera ruling, he would be wise to read the part that says: “Under our constitutional separation of powers, the courts must not intrude upon the people’s power to legislate, subject to constitutional and proper statutory requirements. This Court has observed that the citizens’ legislative authority is as great as the power of the Legislature to legislate.”

Of course the court can restrict the Legislature. Imagine, though, if it insisted that lawmakers live in their districts and can only vote on bills if they can get to Phoenix in 15 minutes. The court shouldn’t render the people’s power irrelevant.

Does Coury think that the founders of the state would agree with his interpretation?

The initiatives today come from the political left because if the right needs something done, they just ask the Republican Legislature to do it. That's the way the vote broke.

For that very reason, the Left's push to put questions to the people has long riled lawmakers, business interests and Republicans interest groups. They run things and need not answer to anyone but themselves because Arizona is a conservative playground. They don’t like that. Citizens taking matters into their own hands – as constitutionally allowed – is mob rule.

Here’s something for conservatives to consider: Y’all hold the state House of Representatives by a single seat and the state Senate by two. An unpopular Republican president may do what unpopular presidents do and take a good part of the party down along with him. Arizona is one of those states in danger of flipping red.

Are you sure, Republicans, you want to make it harder to get around. say, Gov. Katie Hobbs and a Democratic Legislature?

California, Virginia and Colorado were once Republican bastions. Then one day they weren’t. Then they never went back.

You may be the mob that wants to make a rule or two. How funny will Judge Coury’s smirk be then?

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The Red 4 Ed movement started a ballot initative push that again has been thwarted by courts.


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