Horizon, Host: Ted Simons

May 24, 2013


Host: Ted Simons

Journalist Roundtable

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Ted Simons: Good evening, welcome to "Arizona Horizon's" "Journalists' Roundtable," I'm Ted Simons. Joining me tonight are Mary Jo Pitzl of "The Arizona Republic," Howard Fischer of "Capitol Media Services," and Luige del Puerto of the "Arizona Capitol Times."

Ted Simons: After vowing not to sign any bills until the legislature made significant progress on Medicaid expansion and the budget,the governor proved her point this week with her veto pen. We'll get into that. First, we've got to get to Joe Arpaio in the decision regarding his discrimination and civil case here.

Mary Jo Pitzl: The judge ruled after eight months of deliberation, after a week-long trial last year, Arpaio's office did briefly profile drivers and discriminated against Latino drivers, and said stop it. He issued an injunction to prevent that from happening in the future.

Howard Fischer: A lot of that is based on those suppression sweeps you couldn't help reading about, because he was busy putting out press releases. He went into areas Latinos tended to gather. You didn't see a lot of them in Paradise Valley, for example. The judge said they were pretexts, things they never stop vehicles for. If somebody in the vehicle were Latino, they held them longer than just writing up the ticket and using that as a way to see if they could find illegal immigrants. He said you cannot do that. Theoretically the sheriff's department said, we don't use racial profiling, but in fact the actual practice was to use race as a factor to determine when to question people. You cannot do that.

Ted Simons: And the judge said you cannot do that, stop doing that.

Luige del Puerto: The judge agreed with what the plaintiffs had been seeking, which is an injunction against the practice. You can't stop a vehicle based on the race or ancestry of the people inside, if your sole basis is their race or ancestry. You can't hold people for a long time also because of race or ancestry, because that's a violation of people's Fourth Amendment rights.

Howard Fischer: Of course the sheriff, I talked to him this afternoon and he said, well, we don't profile and we'll be appealing this. The ruling provides no financial relief, there is no sanction, no criminal penalty. It's simply an order, don't profile. Yet he wants to appeal that to the 9th Circuit Court of Appeals.

Mary Jo Pitzl: Why wouldn't you? Why would you want that on your record, especially if you still have the outstanding justice investigation into the practices of your office. Why would you want to acknowledge a major blemish like that on your record?

Howard Fischer: You're assuming, A, anything is going to keep him from getting reelected; and B, the DOJ case has to stand on its own. I'm not sure that they can use what Judge Snow found as a basis for bringing any sort of criminal charges.

Ted Simons: And we're not sure yet as to how much fodder for the file there is, for the Department of Justice's investigation, or where this would lead regarding other civil cases that may come down the pike against the sheriff's department. How many pages was it? 140 pages. We'll have a nice holiday weekend reading for that. Back to the state capitol, the Governor vetoes five bills. I guess she certainly understands what 'moratorium' means.

Mary Jo Pitzl: She does, and she wants to make sure the legislature does. The Governor said about two weeks ago, no more, I'm not taking action on any more bills until you show me some progress on Medicaid and the state budget, those two issues of course are tied together. So they pretty much stopped sending her bills, this week a couple of Senate bills did get -- found their way to the governor's office and she got out her veto stamp and sent them off to the scrap heap.

Howard Fischer: The word that came down is I want progress or substantial progress. As we know, as we talked about last week, the Senate did improve, A, a budget. And B, her Medicaid plan. It was over the sort of cold dead body of Senate President Andy Biggs. They said, we've done our bit. I thought whatever moratorium had occurred was over. In her veto message she said she doesn't -- didn't use the word substantial any more, she wants Resolution, which Biggs is saying, does that mean my way or the highway? Does it have to be resolved the Governor's way?

Luige del Puerto: Andy Biggs, when I talked to him the day they sent those Senate bills to the Governor, I said why are you doing this? The Governor has not called me and said, stop sending bills. Second of all, she said substantial progress. If she's seeking that we pass a budget proposal with Medicaid expansion, that's not substantial progress, that's completion. What is she seeking. If I'm not not mistaken, immediately after the Senate passed the budget, which included the Medicaid proposal, the Governor Resource office said, just passage of this budget by one body is not -- does not satisfy her requirement.

Howard Fischer: But they said that to us, and that's the issue. You know, I guess the question is, if Matt tells me what the Governor wants, that is the same as telling Andy Biggs.

Ted Simons: Well, if your president Biggs don't you find out first or do you want to go ahead and send -- what was sent over there?

Mary Jo Pitzl: I think particularly with the religious freedom bill that was promoted by the Center for Arizona Policy passed the Senate on Wednesday, I believe, and went up. That's something that you would expect the Governor to sign. By vetoing it she's sort of vetoing a very influential person at the legislature and with whom the Governor is usually in sync with. There is a bit of a message.

Luige del Puerto: This is not the first time the Governor said, don't send her bills. They have had this one for the last however many years.

Mary Jo Pitzl: This is sounding a lot like . Back then the new Governor Brewer wanted the state budget. The legislature passed it, they weren't sending it up to her, because they knew she thought it stunk and she would veto it and send them back to work right away. They held on to the budget. She went to the Supreme Court and got a ruling. It looks like the actions of the House, in deference to Brewer, has sat on bills that are ready to go, that they are violating that corridor.

Howard Fischer: Here's part of the problem. This was not -- this is less a formal ruling than an order. The judge has basically said a plague on both your houses because they faulted the legislature for not sending it. The budget bills weren't how they were supposed to be and the reconciliation bills. Ruth McGregor was the Chief Justice. You can hold it for normal processing, ministerial actions. Anything else is in fact unconstitutional. Here's the problem. Who has the right to sue? The Governor? The legislature? Luige, do you have the right to sue?

Luige del Puerto: And with political questions like this one, there's really no remedy at the end of the day. Even if somebody sues, so what? You go to court and the court says you're wrong and what happens next? What the court said is if the bill is voted on and passed by the two chambers, you can't hold on to it beyond ministerial procedures, time needed for that. But there is a mechanism, a way for the House and Senate to send bills. You can stop the bill from getting a final reading. Even if a bill has all the support it needs, you can sit on it and you don't violate --

Howard Fischer: Understood. But they didn't do that, that's the point. They said House Bill has final approval by a vote of such-and-such, and they didn't say the magic words and transmit the bill to the governor.

Ted Simons: One of the many things the governor wrote in there, she said nothing about the bills in this rejection. It was all about, I told you not do this.

Mary Jo Pitzl: All of this for inside baseball, and who can do this and who can't, the Governor wants, wrap it up, guys. It's been 130 days in the legislative session and there are many, many lawmakers who agree with her. Until they get some kind of movement there, which very likely could send everything back to the Senate and there has to be some kind of compromise, she's looking ahead and seeing a lot of time left on the clock it would appear.

Luige del Puerto: And talk to me about those vetoes, what really struck me is the fact she was very candid. She would find a policy reason for rejecting a bill.

Ted Simons: Exactly.

Luige del Puerto: She didn't bother this time.

Ted Simons: I must demonstrate my moratorium is no idle threat. I think she's demonstrated that. Are they going keep throwing stuff over there, and say, here it goes?

Howard Fischer: I don't think so. The problem is this late in the session resurrecting bills is very difficult. You either have to find an existing bill to amend it or get special permission to start a new bill from scratch. I think Andy proved his point sure, she proved her point. Okay. Now we're down to the question of, let's assume the House version of Medicaid is the Andy Biggs -- Andy Tobin version, with the public vote the Governor doesn't want. Send it back to the Senate. Let's say they get the votes. They resolve the Medicaid issue, but not the way the Governor wants it. Does that mean the moratorium stays in place? Does she hold her breath and turn blue?

Ted Simons: What is happening with the house and the Medicaid expansion and the speaker's efforts to get this referred. What's the latest?

Luige del Puerto: The Speaker has a proposal to punt this question to the voters. He's trying to find the votes. He's talking to groups supporting the Governor's plan and trying to persuade them to support his proposal. So far there's not the votes for his proposal to get out of his chamber. And even if it did, we have spoken with a whole number of conservative Republicans in the Senate who have said, we don't want to send this question to voters. This is our responsibility. We should decide this one, not ask the voters to do that for us.

Howard Fischer: Now we're into, we've talked about here, do you need to send it to the voters? Because otherwise it's a tax. If it's a tax it needs a 2/3 vote. It takes 80,000-plus signatures to refer it to the ballot which essentially puts it off until 2014.

Ted Simons: Compare what's happening in the House with what happened in the Senate. Is the Speaker keeping his troops in line and is there any mutinies happening there?

Mary Jo Pitzl: No, they are not mutinies. I don't think there's any talk of trying to get a new speaker in there. It's just a different dynamic. The divisions of the Senate were apparently from really last year before the election with a lot of these members. The divisions have been obvious and fairly deep. The house is not divided in that way. It's a big caucus, 36 Republicans, and Tobin says he needs half of the caucus to go along with this before he's going to move it? That's a big, big hurdle.

Howard Fischer: Heather Carter, carrying the bill for the governor there, says she can line up six or seven of the Republicans, to add to the Democrats, can repeat what happened in the Senate. As Mary Jo says, we're not going to roll over you. But at a certain point, if the speaker cannot line up the votes he almost has to allow the other bill to come to the floor.

Ted Simons: Representative Kavanagh saying appropriations are not going to touch this. That's pretty important, isn't it?

Mary Jo Pitzl: They are going to strip out Medicaid, he said. I suppose someone else could try to put it on but that would be very difficult to get it on in his committee. So you do it on the floor. That's what they did in the Senate. Medicaid was not part of the budget bill when it came out of Senate appropriations.

Luige del Puerto: What would be interesting about that, if they decided essentially to hear the proposal in the appropriations committee, there's going to be less discussion about it. Probably the biggest policy we've seen in years get out of legislature without so much as a hearing in a committee.

Ted Simons: We are hearing about, though, threats. What's going on here regarding lawmakers, Republican lawmakers getting what sound to be pretty substantial threats?

Mary Jo Pitzl: Well, what sort of exposed all this was Representative Kate Brophy McGee stood up and talked about this, what she calls a very obscene angry phone call that had come in on her voicemail, and it was very unsettling. She said, I shouldn't be afraid to come to work and do my job, take the stands that I do. She supports Medicaid expansion. This actually just reinforced her decision to vote for this, whenever that opportunity arises. Other people start to chime in, we've gotten phone calls, we're going to follow you, chase you to the ends of the earth. And then there's e-mails coming from outside groups. You know, and the tenor of them, one was particularly bizarre because it cited the Second Amendment defense that they could mount if they were charged with shooting someone, but we were talking about Medicaid. That was very concerning to a number of lawmakers.

Howard Fischer: The emotions as we've seen on this have run high. But it seems like the atmosphere has been particularly poisoned. Some of that goes back to the count Republican committee starting off with the comment comparing the Governor to Judas. Saying the Republicans who vote for this are political dead meat. That stirs folks up. We're not so much having a discussion of the policy. We're having a discussion of Barack Obama. And if you support anything that Barack Obama wants, you must be a disloyal Republican.

Ted Simons: It sounds like that could be -- you want to put this on the ballot and refer to the voters? Welcome to that kind of rhetoric and more if this becomes a statewide referendum.

Howard Fischer: That's part of the reason the Governor doesn't want it on the ballot. Think of the Koch Brothers and the kind of money they can drop in here on this issue to kill it.

Luige del Puerto: Howie made that point. Assuming they get these tickets, there's an effort to put this question on the ballot, a referendum, now if they 86,400 signatures--

Howard Fischer: Only?

Luige del Puerto: Yeah, they have three months to get 86,400 signatures. I've talked to a Republican strategist who said it's doable. If you have the money to do it, and if you're organized, especially if you have lots of money to do it, it's doable.

Howard Fischer: I don't think it's such a high hurdle. If you go out in the street, right after the show is over and have a petition that says, sign this to keep Obama-care from coming to Arizona, you'll get 80,000 signatures in two weeks. There's no problem getting the signatures on this.

Ted Simons: We also had e-mails and phone calls of a bizarre and threatening nature from the outside, there was a curious email from the inside a Republican lawmaker to another Republican saying what?

Mary Jo Pitzl: Representative Bob Thorpe, freshman Republican from Flagstaff, does seem to not always think before sending emails. He sent it to his followers, folks he communicates with. He copied on his email the names of six other GOP lawmakers in the house who support Medicaid expansion. It was sort of a way to say -- he urged these people to contact those six and let them know they should vote against Medicaid expansion. That gets out, you know, and so the Speaker then has to sort of admonish Mr. Thorpe that you really shouldn't do that, rally the troops against your own colleagues. He apologizes in another email in which he adds more Republicans, I guess he's got all these lists. Representative Brophy McGee was named in the email. It just would be nice if he thought a little more before sending. He's a very polite sort of nice guy when you talk to him. He said he screwed up and meant no bad intent. He just wanted them to vote no.

Howard Fischer: But the recipients are the ones probably behind some of the threats we're getting with this thing. Bob Thorpe says I ought to do what I can to keep these people from voting.

Ted Simons: And they now know here they are.

Mary Jo Pitzl: With the exception that Thorpe's e-mails are not going to be investigated. The one that references the Second Amendment and the harassing phone calls have been turned over to public safety and they will see what they can run down on those.

Ted Simons: Before we leave the Capitol, we had a nonprayer during the prayer, and then a second prayer to repent against the nonprayer. Luige, please?

Luige del Puerto: In an intersection of faith and politics, very interesting to watch. Juan Mendez from Tempe prayed or gave a nonprayer, basically a secular humanist kind of a prayer. And even before that he had asked people for solicitation about how he should go about this prayer. Let me start by saying that each session they begin, the house and Senate begin with a prayer. They ask rotating casts of members to provide this prayer. You know, we've seen Muslims, Jews; all kinds of religions go in there and pray. But Juan Mendez thought it's his time to pray a secular prayer, a nonreligious prayer. Well, you get all sorts of reactions when you do something like that. That's what we saw this week.

Howard Fischer: And what happened of course is -- and he kind of made sure people knew what he was doing. He said, normally you say bow your head. I'm going to urge you not to bow your head but look around and be happy that we're all here and discussing public policy. Representative Steve Smith, who is never one to avoid a controversy, decided the next day after the regular prayer had been offered by Kelly Townsend, we need to make up for the nonprayer prayer by offering a second prayer, because the Almighty will be really ticked off otherwise, and issued a prayer. We all went up to him and said, okay, what defines a prayer? Do you need the name of God, something as a supplication? His answer was like the answer the supreme court gave on obscenity. You know it when you hear it. That raises the question. The House rules say the session begins with essentially the registration, prayer, Pledge of Allegiance. His point was the same as Pledge of Allegiance. If you just said I want to stand up and honor the people of the world, and you didn't give the pledge, you haven't followed the rules. He says a prayer requires the use of the almighty. It was an interesting side trip all the other weird stuff going on.

Ted Simons: And it sounds like everyone survived. As we close out, I do want to get to the 9th Circuit Court of Appeals striking down the Arizona abortion law. This is the one banning abortion 20 weeks -- after weeks of pregnancy.

Mary Jo Pitzl: It was immediately appealed in the lower court, and upheld the Arizona law. Three doctors, the ACLU and the Center for Reproductive Rights took it you went to the ninth circuit and they ruled the law was unconstitutional. This happens before the accepted viability date, therefore it's unconstitutional.

Howard Fischer: What's fascinating is Bill Montgomery, who personally argued this, said yes, I understand what Roe versus Wade says. Other things should be taken into account; One is evidence of fetal pain. Interestingly enough, one of the judges who concurred said, well, if you're not allowed to interfere with a woman's rights and you're concerned about fetal pain, you can anesthetize the fetus. The other concern was additional risk to women beyond the 20th week. The judge said, people do all sorts of stupid things, all sorts of stupid surgery. We don't tell them they can't have that. Absolute line is viability.

Ted Simons: I think the idea, it sounded like the idea, we talked about it during the week with Paul Bender, that reasonable restrictions by states on abortion are okay. This is not a reasonable restriction. The court, 9th Circuit Court of Appeals, unanimously said this is a ban.

Luige del Puerto: That's the linchpin of this whole decision. The court is saying this is not a restriction. You are not trying to regulate, you're trying to stop it from happening. If you are precluding women pregnant from weeks from getting an abortion, you are stopping an abortion. That right has been litigated and the long-standing court ruling, long-standing case law is they have a right to do it.

Howard Fischer: That goes to, is Montgomery going to take the case to the Supreme Court and seek the position review. I think he has to attack Roe versus Wade head on. This is a very different court than from 1973.

Ted Simons: And the question is, will they take it.

Howard Fischer: They take maybe 80,90 cases a year, out of thousands that are sent to them. It's hard to say. It takes only four justices to agree to a petition for cert.

Ted Simons: This concept of viability is what he's pressing on.

Mary Jo Pitzl: His argument is medical technology has advantaged a lot and we know more than we did four decades ago. The date of viability is moving backwards all the time, earlier in time.

Luige del Puerto: The two sides did not disagree about one thing. That at 20 weeks that is not the point of viability. Both sides agreed that's not a viable state.

Ted Simons: Whether or not those standards change --

Howard Fischer: And it can change. In the days of roe versus Wade, it was 28,26 now down to 23, 24 . Even if it's previability, other issues like women's health and fetal pain allow to us create this "restriction."

Ted Simons: Thanks for joining us. And that is it for now. I'm Ted Simons, thank you so much for joining us, you have a great holiday weekend.

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