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Updated Mar 26, 2014 - 5:38 pm

Appeals court hears challenge to Arizona Medicaid plan

PHOENIX — Lawyers for Republican lawmakers who control the Arizona
Legislature tried to persuade a panel of appeals court judges Wednesday to
revive their suit seeking to block funds for Gov. Jan Brewer’s Medicaid
expansion plan.

A lower court judge last month threw out the lawsuit, saying the 36 GOP
lawmakers who sued had no right to pursue the action because lawmakers
themselves decide if an assessment triggers a constitutional requirement for a
2/3 vote. Lawyers for the lawmakers want the court to take up their appeal.

The three-judge Arizona Court of Appeals panel sharply questioned Brewer’s
lawyer, Douglas Northup, on why they shouldn’t hear the appeal, focusing at
times on the constitutional requirement that was adopted by voted in 1992’s
Proposition 108. The Legislature turned back efforts by expansion opponents to
require the two-thirds vote.

“They could have not even brought this to the floor for a vote,” Northup said
of legislative leaders. “The President and Speaker had that power, yet they
did. The vote was made, there were three different floor amendments made to add
the Prop. 108 language and they were voted down.

But Judge Peter B. Swann said allowing a majority vote not to trigger the
constitutional requirement didn’t make a lot of sense.

“Then that would sort-of render the entire constitutional amendment toothless,
wouldn’t it, if a majority, a simple majority, could decide that no
supermajority is required, when would a supermajority ever be required?,” Swann

Maricopa County Superior Court Judge Katherine Cooper’s ruling said their
argument that a hospital assessment included in last year’s House Bill 2010 was,
in fact, a tax that required a supermajority vote of the Legislature under
Arizona’s constitution was incorrect. Her ruling said they were not harmed and
therefore could not sue.

The attorney for the Goldwater Institute, Christina Sandefur, told the appeals
court judges Wednesday that the whole process would be upended if the case was

“If Legislators are not able to assert standing in order to preserve the
integrity of the Legislative process, in order to preserve their right to vote,
then that is going to be very detrimental to the public process itself,”
Sandefur said.

The judges said they would rule later on whether to accept the case, and what
topics they might hear if they were to do so.

Last month’s dismissal handed the Republican governor a major victory in her
battle against conservative members of her own party.

A bipartisan coalition of lawmakers Brewer assembled to support her plan voted
not to impose that requirement on the law, which expanded the state’s health
insurance program for the poor, known as the Arizona Health Care Cost
Containment System, or AHCCCS. The law included an assessment on hospitals
designed to pay the state’s costs.

The hospitals backed the proposal, in large part because they believed they
would see far lower costs for uninsured patients.


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