In reprise of 2018 ruling, judge boots tax hike for education off ballot

For the second time in as many election cycles, a judge has barred from the ballot a citizen initiative that seeks to increase funding for K-12 education by hiking income taxes for higher earning Arizonans, ruling that the campaign omitted critical information from a brief description on the petitions they circulated.

Maricopa County Superior Court Judge Christopher Coury ruled on Friday that the Invest in Education initiative’s 100-word description didn’t include a half dozen key components of the measure. And Coury took the initiative campaign to task for failing to heed an Arizona Supreme Court ruling that blocked the 2018 iteration of the same initiative from the ballot. 

The Invest in Education campaign said it will appeal the ruling to the Arizona Supreme Court. 

The income tax hike was projected to raise about $940 million per year. 

Initiative campaigns must include a description of up to 100 words on the petitions they use to collect the signatures they need to refer citizen initiatives to the ballot. That description does not appear on the ballot or on any official election materials.

Invest in Education’s 100-word description stated that the proposal would impose a 3.5% surcharge on the income of individuals earning more than $250,000 per year, or couples earning more than a half million dollars. The income tax rate for those earners is currently 4.54%. 

It also explained that the money raised by the new surcharge would be used to hire and increase salaries for teachers and other personnel, mentoring and retention programs for new teachers, career training and education programs for teachers, and would help fund the Arizona Teachers Academy.

But Coury said that description left out a host of other things that he deemed principal provisions.

Most notably, Coury said that by describing the new tax as a 3.5% surcharge, the campaign failed to explain to voters that Invest in Education would raise the taxes of some Arizonans by nearly 78%. The Arizona Supreme Court used the exact same logic when it rejected the 2018 Invest in Education initiative, ruling that describing a proposed income tax increase by saying “percent” instead of “percentage points” risked confusing voters.

Coury said the Invest in Education campaign had a luxury that few litigants ever get: an Arizona Supreme Court ruling that explains in detail how to describe an income tax increase. Yet the campaign ignored that ruling, he said, and used its own language rather than the language that was “blessed” by the Supreme Court in 2018.

Playing off the initiative’s support for education, Coury compared the Invest in Education campaign to a student who simply refuses to follow a teacher’s instructions. 

“When a teacher specifically instructs a student exactly how to complete a math problem, and when the student disregards the instruction and does the math problem incorrectly on a future test, should the student receive a passing grade? The simple answer is no,” Coury wrote. “However, it is not unfair for a feeling of disappointment to arise based on the student’s performance because the student disregarded the teacher’s specific instruction.”

The 100-word descriptions on initiative petitions don’t have to be impartial, the Supreme Court ruled two years ago. And they don’t have to describe every provision of a proposed ballot measure. But the court said in its 2018 ruling that it must describe an initiative’s “principle provisions,” and that petitions will be invalidated if a description “it is fraudulent or creates a significant danger of confusion or unfairness.”

In addition to the mathematical issue, Coury wrote that the campaign misled voters by using the word “surcharge” instead of simply calling it a tax increase. He said the campaign failed to explain that the surcharge would apply to many businesses as well as high-earning individuals. 

The judge said the description omitted key information about who would receive much of the money raised by the initiative.The description failed to inform signers of the petitions that the initiative would bar the legislature from using the new money to supplant pre-existing education funding, Coury wrote. And he said it didn’t explain that it would limit the local revenue spending limits in the Arizona Constitution.

“The unfortunate victims in this case are Arizona’s teachers and students. The Court commends Arizona’s teachers for their hard-work, dedication and care for Arizona’s students, who are the future of our state. Defendant Invest in Education, quite simply, let Arizona’s teachers down for the second time since 2018,” Coury wrote.

Joe Thomas, president of the Arizona Education Association, had different ideas about who let down Arizona’s students and teachers, and criticized Coury for what the Invest in Education campaign deemed a “bizarre” and “political” ruling.

“Our state has more than 1.1 million K-12 students that Judge Coury let down today — and that’s shameful,” Thomas said in a statement issued by the Invest in Education campaign. “Judge Coury inserted his own political views throughout his baseless ruling. We will appeal immediately.”

House Minority Leader Charlene Fernandez, a Yuma Democrat, said Coury “elevated a technicality over our constitutional right to direct democracy.”

“This judge held Invest in Ed to an impossible standard where a ballot measure must – in effect – use its opposition’s talking points and include minor aspects of the proposal that can’t possibly fit in 100 words. Arizona schools and teachers have been disrespected for too long, and the Arizona Supreme Court should right this wrong as soon as possible,” Fernandez said in a press statement.

The ruling was a victory for plaintiff Jaime Molera, a former state schools superintendent who was also the plaintiff in the 2018 case. The litigation was funded by an opposition committee led by the Arizona Chamber of Commerce and Industry. Molera said he believes the opposition committee, Arizonans for Great Schools and a Strong Economy, is in a good position to succeed on appeal.

“I think the judge’s ruling was very clear and got to the heart of why we felt this lawsuit was needed,” Molera told the Arizona Mirror. 

While Coury agreed with Molera’s arguments regarding the 100-word description, he declined to bar the initiative from the ballot based on another claim that Invest in Education violated a state law prohibiting initiative campaigns from paying petition circulators based on the number of signatures they collect.

Coury said Molera’s attorneys showed that Invest in Education did, in fact, violate the law with productivity bonuses and other incentives, but he said the maximum number of signatures that could be invalidated because of those violations wouldn’t be enough to keep the initiative off the ballot. At most, the judge said, 70,080 of the initiative’s more than 377,000 signatures would be disqualified. That would leave the campaign with more than 300,000 signatures, well above the minimum of 237,645 it needed to qualify for the ballot.