Biggs v. Brewer

Posted on September 11, 2013 | Type: Case
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Last step: AZ Supreme Court granted petition for review
Next step: Oral argument will be heard on Nov. 6, 2 PM at the University of Arizona


What happened to bring about this challenge?

Earlier this year, the state passed a Medicaid expansion program that levies an unconstitutional provider tax on Arizona taxpayers, to fund the program. Under Prop. 108 of the state constitution, bills that enact new taxes or increase taxes must receive two-thirds majority vote in both houses of the legislature. The state’s Medicaid expansion bill fell well short of this threshold. The Goldwater Institute is representing legislators whose votes against Medicaid expansion should have defeated the bill but were effectively nullified when the expansion bill became law without the constitutionally required two-thirds majority approval guaranteed by Prop 108, their constituents who were denied representation when their senators’ and representatives’ votes were not counted, and Arizona taxpayers who have been deprived of the protection of constitutional separation of powers.

Who are the clients?

  • 9 state senators and 27 state representatives who voted against Medicaid expansion and would have defeated the provider tax under Prop. 108.
  • Jeanette Dubreil (Legislative District 22) and Katie Miller (Legislative District 14), constituents who were denied representation when their senators’ and representatives’ votes were not counted.
  • Tom Jenney, an Arizona taxpayer acting as private attorney general to enforce constitutional separation of powers.

Who is the judge?

Hon. Katherine Cooper

What are the key issues?

 In 1992, Arizonans enacted a constitutional provision that shielded the state's taxpayers from one of the most widely abused government powers: the power tax. That provision, known  as Prop 108, requires a two-thirds majority vote of both houses of the legislature to approve any new tax or increase an existing tax. Medicaid expansion and the provider tax that funds it, clearly increases the tax burden on Arizonans. However, Medicaid expansion passed both houses of the legislature with little more than a simple majority, falling well short of the constitutionally required two-thirds majority necessary to approve a new tax. 

The current expansion bill also violates the separation-of-powers provisions by relinquishing the taxing power to the Arizona Health Care Cost Containment System Director, empowering him to set the amount and decide who will be exempt.

Proponents of Medicaid expansion have forsaken Arizona’s Constitution to foist upon Arizonans an expensive and unworkable federal program. Because Arizona courts have never squarely addressed these Prop 108 and delegation issues, the expansion bill could set a dangerous precedent that extends far beyond Medicaid expansion. The Goldwater Institute is representing Arizonans and their representatives who are asking the courts to preserve the democratic protections enshrined in Arizona’s Constitution.

Case Documents

Litigation Backgrounder (9/12/2013)
Complaint (9/12/2013)
Response to Motion to Dismiss (10/16/2013)
Trial court ruling  (2/5/2014)
Petition for Special Action (3/4/2014)
Reply in Support of Petition for Special Action (3/18/2014)
Court of Appeals special action ruling (4/22/2014)
Response/Cross Petition for Review (6/3/2014)
Response to Amicus Briefs (7/16/2014)
Supplemental Supreme Court Brief (9/16/2014)


The Legal Team

Clint Bolick is the Goldwater Institute’s Vice President of Litigation. He was named as a Lawyer of the Year in 2003 by American Lawyer magazine and in 2009, Legal Times named Bolick one of the “90 Greatest D.C. Lawyers in the Past 30 Years.” Bolick received one of the freedom movement’s most prestigious awards, the Bradley Prize, in 2006 for advancing the values of democratic capitalism. He has argued and won cases in the United States Supreme Court, the Arizona Supreme Court, and state and federal courts from coast to coast. He has won landmark precedents defending school choice, freedom of enterprise, and private property rights and challenging corporate subsidies and racial classifications. Before joining the Goldwater Institute, Bolick was co-founder of the Institute for Justice and later served as president of the Alliance for School Choice. He also has assisted policy activists in several states to establish litigation centers based on the Goldwater Institute model. He is the author of several books, most recently with Governor Jeb Bush, Immigration Wars: Forging an American Solution. In addition to his work at the Goldwater Institute, Bolick serves as a research fellow with the Hoover Institution.

Kurt Altman is a Senior Attorney for the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation. Before joining the Institute, Altman operated a private litigation and appellate practice, focusing on criminal law in both state and federal courts. Previously, Altman spent a number of years as an Assistant U.S. Attorney for the District of Arizona, leading investigations and conducting trial in Federal District Court. As a member of the Department of Justice, Altman earned the Director’s Award, the highest honor bestowed upon Department of Justice lawyers, for his efforts in the first capital prosecution in Federal District Court for the District of Arizona. Additionally, he has twice received the Federal Bureau of Investigation Director’s Award for his tireless efforts on behalf of FBI-conducted investigations. Since 1994, Altman has served as lead counsel in hundreds of jury trials throughout Arizona. Because of his unique background, Altman has been a featured lecturer and teacher at numerous seminars and centers where he has been able to share his experiences with attorneys from around the country. He is a graduate of Wake Forest University School of Law, in Winston-Salem, NC.

Christina Sandefur is a staff attorney at the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation. Sandefur litigates in defense of economic liberty, private property, free speech, and taxpayer rights and is the lead attorney on the Institute’s challenge to the federal health care law. She recently won a major victory for Arizona taxpayers when the court of appeals held that government cannot spend bond money on unapproved purposes when voters authorized the funds for specific projects. Sandefur is a frequent guest on national and local television and radio shows. Before joining the Institute, Sandefur worked to advance liberty as a law clerk at the Pacific Legal Foundation in California and a research intern and author at the Michigan-based Mackinac Center for Public Policy. She earned her J.D. summa cum laude from Michigan State University College of Law, where she served as notes editor of the Michigan State Law Review and president of the MSU Federalist Society. Sandefur graduated magna cum laude from Hillsdale College with a B.A. in history and political economy and completed an honors thesis on the economic history of the U.S. Postal Service.


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