lawsuits hamper lawmakers
The Arizona Republic
Feb. 20, 2005
It used to be when there was a
state issue that needed attention, a constituent would raise the concern
with a legislator, who would then seek a solution through a public and
As George Washington said, "The Constitution, which at any time exists
'till changed by an explicit and authentic act of the whole people, is
sacredly obligatory upon all."
That changed in the 1990s, when Tim Hogan, an attorney with the Arizona
Center for the Law in the Public Interest, began suing the state to
create the public policy he prefers.
Through lawsuits over the last
decade or so, Hogan has been allowed to run roughshod over the constitutional
rights and powers granted to voters and legislators to advance his own agenda.
In short, his main goal has been to trim the power of the duly elected
legislators who form state policy in accord with the Constitution and then face
voters who judge those decisions.
In contrast, Hogan and his allies are accountable to no one, face scrutiny from
no one and answer to no one. There is no recall provision in the state
constitution that can stop his bad behavior.
But his actions have far-reaching ramifications that both remove power from the
Legislature and negatively impact every taxpaying Arizonan where it hurts most:
right in the pocketbook. To date, Hogan has cost this state billions of dollars,
all in the name of the "public" interest.
Although it's unclear whose interest Hogan really works to protect, everyday
Arizonans should fear his intentions. He bedazzles judges and the media with
claims of inequities and racism in our state's schools.
By circumventing the political process, Hogan takes his case directly to
sympathetic, activist judges who also face little oversight and jump at the
chance to opine on policy.
However, lifetime appointments for federal judges mean they also are free from
accountability. With the toothless merit retention system, state judges are
virtually assured of a lifetime job, free from impunity.
Through the years, Hogan has convinced these judges that the state needs to add
millions of dollars to teach children from other countries bilingual education
(directly against Proposition 203, which requires English immersion) and
hundreds of millions of dollars every year for construction of new school
He is now looking for a judge to agree with his opinion that the state fails to
meet an alleged constitutional demand to provide a school finance system that
meets the needs of "at-risk" students who may not be able to reach state
This is nothing more than a thinly veiled attempt to find a way to give the
school bureaucrats more money to spend. However, the last I looked at the
Constitution, it was up to the Legislature to decide what the appropriate level
of funding for state programs should be.
But Hogan believes he knows best.
Hogan may have good intentions, but he fails to look at the big picture, the
Constitution or the cost to the taxpayer. What he refuses to understand - or
doesn't care about - is that your pocket is not open for his picking.
Legislators have a duty to protect society and keep government intrusion to a
minimum. Hogan has no such prohibitions. We have to make sure the budget pie
gets distributed where it does the greatest good, keeping in mind that the
people of Arizona create the pie with their tax dollars.
When the Legislature convenes in January, we consider all of the state's
priorities, not just those we like. Those include education, health care, elder
care, and most importantly, ensuring a safe society for all residents.
One of our biggest challenges is to manage the state budget to cover those
priorities responsibly, and in the face of a vastly growing population and fewer
discretionary dollars. Hogan does not face this same responsibility.
All students are taught in civics class in high school that it is the function
of legislators to write laws that the executive carries out. And it is the
function of courts to apply those laws to individual citizens and to make sure
that the Constitution is obeyed.
Judges should not write laws in substitution for the Legislature. As Hamilton
wrote in "Federalist No. 78" of federal judges, "they shall have will but not
judgment." They could and should be free to decide the case before them, but
they should not substitute their judgment for that made by the Legislature in
writing the laws.
Hogan would do well to revisit his civics class lessons and work with us to make
a better Arizona.
Rep. Russell Pearce, R-Mesa, represents Legislative