A judge indicated Wednesday that the fate of a lawsuit seeking to prevent the state from curtailing health care for the needy could depend on how he interprets one word: “available.”
Attorney Tim Hogan of the Center for Law in the Public Interest asked Maricopa County Superior Court Judge Mark Brain to overturn a decision by the Brewer administration to stop enrolling childless adults and some parents in the program as part of a cost-cutting move. Hogan said the move is contrary to the express terms of Proposition 204, approved by voters in 2000, which requires the Arizona Health Care Cost Containment System to provide free care to everyone below the federal poverty level.
But attorney Joe Kanefield, who represents AHCCCS, told the judge the state can scale back the program because of the budget situation. And he argued that Brain cannot legally second-guess the decisions made by the governor and lawmakers.
Hogan, however, said that is not true.
Central to the question is that Proposition 204, which expanded eligibility for AHCCCS, said the cost would be paid for through tobacco taxes and the state’s share of a settlement with cigarette manufacturers. It also says extra funds would come from “any other available sources including legislative appropriations and federal monies.”
“The funding just isn’t there,” Kanefield told the judge.
“The only way to do that is to raise revenues or cut into other core governmental functions,” he continued. Kanefield said that the desire to provide health care for everyone below the federal poverty level “has to be balanced against the greater needs of the state.”
Hogan pointed out, though, that the Arizona Constitution prohibits lawmakers from altering or repealing any measure approved by voters. He said that refusing to fund the program is the function equivalent of changing it without first taking it back to the voters.
Brain, however, said Hogan’s argument falls apart if there are really not “available” funds.
The judge said it would have been one thing had Proposition 204 been worded as directing lawmakers to provide the extra cash if there was not enough coming in from the taxes and settlement. Brain said the word “available” could be read to give lawmakers an escape hatch.
Hogan disagreed, saying that the ballot measure, read in its entirety, makes it “absolutely clear” that the intent was to ensure there would be health care for everyone living in poverty.
More to the point, Hogan said the initiative created a mandatory obligation. And he said that, with the exception of what’s required under the Arizona Constitution, that trumps everything else on the legislative priority list.
For example, he noted that lawmakers did manage to find the cash to fund the Arizona Commerce Authority, the outgrowth of what had been the Department of Commerce.
“There is no legal obligation in the constitution or anywhere else to fund the Department of Commerce,” he said. And Hogan noted that the agency was not mandated by a public vote.
Brain has 60 days to rule, though the judge said he is not likely to take that long.
Whichever side loses, though, is expected to appeal.