So Sue Me

The court has spoken; lawmakers stand in defiance. But if the state Legislature doesn't come up with a constitutional school finance plan by July, school's out forever.

When Jane Hull became governor last September, she quickly announced that she did not intend to have state policies decided in court.

"I try not to comment on what was done before," she says in her middle-school principal's voice. "My attitude is that we don't do well in court, usually, and we're better off if we get things settled ourselves. I think we can solve our problems without going to court."

Until now, the state's motto could have been, "so sue me," with state departments tangled in long-running lawsuits over mental health and schools and prisons and clean air. The state's legal modus operandi in those lawsuits has been to stonewall in court, blab to the media about the injustices of the court system, and then appeal to the next highest court and then the next, even if it meant going all the way to the U.S. Supreme Court.

Increasingly, this is how governing gets done--or not done. The government hems and haws and sighs and stalls until it gets sued. And then it stalls some more. It's not an especially efficient method of governing, but it's certainly a good way for politicians to stretch the boundaries of laws they don't like.

Last week New Times reported on federal bureaucrats who don't follow the law even after they get sued and the court orders them to do so ("Government by Litigation," part 1, December 11). State lawmakers can follow the same lawless paths, ignoring state and federal laws and defying the judges who try to make them knuckle under, a trend borne out by Arizona's long-running fight over school finance.

In July 1994, the Arizona State Supreme Court ruled that the state's means of financing school buildings was unconstitutional because of the vast disparities in the abilities of rich and poor school districts to raise capital.

The only reason the inequities were looked at is that the state got sued. In 1991, Tim Hogan of the Arizona Center for Law in the Public Interest filed suit on behalf of about 40 disgruntled school districts. Hogan's case bounced through the lower courts until the Supreme Court made its ruling.

That should have been the end of the matter. In a sense, it nearly was, when the Legislature stopped to consider what would happen if it just refused to accept the court's ruling.

In theory, legislators are elected to represent the people, and they take an oath to uphold the state constitution. They're also supposed to obey the courts, which are supposed to be an integral part of "checks and balances," as we all read in our high school civics textbooks.

But that doesn't always happen in Arizona, where free-market fundamentalist lawmakers have been able to get their own way through belligerence and intimidation, fueled by one-size-fits-all dogma bought from Washington, D.C., think tanks and swallowed whole. The think tanks churn out carefully spun sound bites justifying charter schools and vouchers and utility deregulation, protesting federal regulations and warbling especially about judges who usurp their lawmaking function.

In Arizona, Governor J. Fife Symington III was the ayatollah of this fundamentalist movement against the courts.

"It's very chic these days to defy a judge," says Lisa Graham Keegan, the state superintendent of public instruction, who tangled with Symington over school funding and is tangling still with Symington's holdout allies in the state Senate.

"There's some public opinion out there that because of the liberal nature of the judiciary, that flouting them is perceived to be politically popular," she says.

As is flouting the federal government.
Symington was a victim of political fashion.
In his 1995 State of the State address, he shrilly proclaimed, "Our voice will be heard on the subject of federal judges pre-empting executive authority in state prisons. If a fight is what they want, a fight is what they will get."

He'd jumped into a running battle between the federal courts and the Arizona Department of Corrections in a number of lawsuits concerning prisoner rights, and obstructed the process sufficiently to get a judge to consider charging him with contempt.

Chuck Coughlin, a former Symington aide, says, "I think he actually looked forward to it. I think he actually wanted to be held in contempt."

According to the state Attorney General's Office, those cases cost the state at least $2.4 million in expenses and attorneys' fees paid to the plaintiffs, not to mention nearly 5,900 staff attorneys' hours.

In that same 1995 State of the State address, Symington also took on the Clean Air Act.

"And make no mistake," he said. "A lawsuit against the Clean Air Act does not mean that we will abandon our air. It means those efforts are little aided by the regulatory caprice of the EPA."

He ranted about fireplace restrictions and auto-emissions tests and EPA interference. In fact, the EPA had to be sued more than a dozen times to force it to lean on the state and come up with antidotes to the brown cloud that hovers over the Valley. Symington's logic was like a Zen koan: We will take no steps to clean the air and it will clean itself. Or perhaps if you don't like the air here, then make a market choice and move elsewhere--which is what he said about school finance: People made market choices and chose to live in poor school districts.

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