TUCSON (CN) - The fate of Arizona's Medicaid expansion is tied to an unconstitutional tax, an attorney for a minority coalition of state legislators argued Thursday, denying that the lawmakers are merely sore losers.
Led by Arizona state Senate President Andy Biggs, 36 Republican legislators sued Governor Jan Brewer last year after House Bill 2010 passed with a simple majority.
Part of the state's efforts to comply with The Patient Protection and Affordable Care Act, and pushed by Brewer in a public relations blitz, the bill authorized an assessment on hospital revenue to help pay for the state's share of the expansion.
The disgruntled legislators claimed that the majority ignored a constitutional amendment requiring a two-thirds vote to pass new taxes.
House Bill 2010 passed the House by a 33-27 vote, and the Senate 18-11, after calls for application of the supermajority requirement failed three times.
A trial court in Phoenix ruled for Brewer and Thomas Betlach, director of the state health care agency, finding that the legislators lacked standing to sue because they could not show a "particularized" injury.
A state appellate panel reversed, finding that the lawmakers could claim a constitutional right to protect the efficacy of their votes.
That set up Thursday's oral arguments before the Arizona Supreme Court at the University of Arizona's James E. Rogers College of Law. Brewer, who will leave office at the end of the year, attended the hearing.
Arguing that the legislators not only lack standing to sue over the law's passage but that they had also "sued the wrong people," attorney Timothy Berg said that the case was more about political issues than legal ones.
"They have political remedies," Berg said. "They can try to repeal the bill in this next session; they could have and did try and were unsuccessful in referring it to the people; they could have tried to persuade the governor to veto the bill. All of those are political remedies that were available to members of the Legislature who are unhappy with a bill being passed."
Chief Justice Scott Bales asked Berg if there was "any avenue for relief for those legislators who thought this was subject to the supermajority requirement."
"I mean, are they basically just left to the majority of the Legislature to determine whether a supermajority is required or not?" Bales asked.
"I don't think the question here is, does the supermajority requirement exist," Berg said. "I think the question is who has the right to challenge a statute on the grounds that it's unconstitutional because a supermajority didn't pass it. And traditionally, the folks who've had a right to challenge any statute of any kind as unconstitutional are the people to whom it applied."
Berg called the issue a "garden variety case of some people in the Legislature who are unhappy, who want you to let them challenge a law because the people to whom it applies either aren't unhappy with it, or haven't filed a lawsuit soon enough to please these folks."
A coalition of hospitals filed a brief, saying they would not challenge the assessment.
Berg also suggested that were the justices to grant standing to the legislators in this case, "any government body in the state that ever has a supermajority requirement that doesn't like how it turns out is going to be in here on special action in front of you. And that's not in the best interest of the state."
Arguing for the legislators, Goldwater Institute attorney Christina Sandefur said that they have standing in the case because they had votes "sufficient to defeat the bill" under the supermajority requirement.
"The individual legislators here have a constitutional interest - not a political interest - but a constitutional interest in the efficacy of their votes," she said.
Justice Rebecca White Berch asked Sandefur to explain just how the legislators' votes were "diluted" in the absence of the two-thirds requirement.
"It seems to me that by not having the supermajority requirement, each vote counted the same and they needed fewer votes to have their position pass had they been in the majority," Berch said.
Sandefur said that Arizona voters had enacted the supermajority requirement to empower "a minority of one-third plus one legislator ... to stop a tax or assessment or fee from going into law."
"They've empowered those legislators. Their votes were more effective than just a simple majority, they were more powerful," she said.
"A majority of legislators can no more deny a minority of legislators their right to vote than a majority of the general public could deny a minority their right to vote.
The "petitioners are essentially arguing that the majority can deny the minority their voting rights."
Sandefur disputed the claim that legislators' only legal road to satisfaction was to work to repeal the bill in a new session, calling the argument a "red herring."
"That would not make these legislators whole," she said. "That's asking them to go out and take a new action. Here, the only way to make these legislators whole and to make their votes count, is to make their votes count, to nullify this bill that should not have become law, because it didn't get the requisite amount of votes."