Republican lawmakers asked the state Supreme Court Wednesday to let it describe an initiative to make permanent a temporary sales tax hike as an "increase.''
Michael Braun, staff director of the Legislative Council, said Maricopa County Superior Court Judge John Rea erred last week when he said that description, absent more context, is misleading to voters. The trial judge said that fails to point out that the one-cent levy, if approved, would kick in only after a current identical tax expires on May 31.
But Braun said the proceeds from the temporary tax, approved by voters in 2010, were designated in one way; the approximately $1 billion a year the new tax would raise initially is earmarked for different purposes.
"These purposes are significantly different than those of the temporary tax,'' Braun wrote, including money not only for K-12 education but also cash for university scholarships and road construction. And the temporary tax was made part of the state constitution; the initiative seeks only a change in the law.
Braun said because the ballot measure has "numerous restrictions and a number of new purposes'' on how the money would be spent, "to suggest that the initiative is merely continuing the constitutional tax is itself misleading.''
Anyway, Braun said that Rea -- and the Supreme Court -- should defer to the judgment of the Legislative Council.
That committee, made up of lawmakers and dominated by Republicans, is charged with creating impartial descriptions of all the ballot measures. Braun said so long as the committee is in "substantial compliance'' with that requirement, the courts should stay out of the fight.
Rea, however, did not see it that way.
The 2010 voter-approved law imposed a one-cent surcharge on the state's 5.6 percent sales tax. Backers, led by Gov. Jan Brewer, said the money raised, coupled with spending cuts and borrowing, was needed to bridge a $3 billion deficit.
The initiative would make that surcharge permanent, effective the day after the temporary levy expires.
Rea said lawmakers can describe the measure as imposing a tax increase -- but only if they also explain that the effective date would mean no change in what consumers pay if the initiative passes. He also said the council could spell out that if the initiative fails, the tax rate will drop.
"By using the term 'tax increase,' the council has adopted one point of view that tends to discourage favorable votes,'' Rea said. And that, he said, violates the legal requirement for the panel to craft an "impartial analysis'' of each ballot measure.
The high court has only a limited amount of time to decide whether it wants to review Rea's opinion and, if so, get formal legal arguments from initiative supporters.
That publicity pamphlet in which the council's descriptions are placed is set to go to the printer before the end of the month. And if Rea's ruling stands, the council has to meet to recraft its work.
The description of the tax is just one issue before the court.
Rea also ruled that the council purposely singled out the failure of the initiative to define the word "resident'' in a section spelling out how some of the cash would go to provide scholarships to Arizona residents to attend universities. He said that point was made for political reasons to suggest -- he believes improperly -- that somehow illegal immigrants would be entitled to get some of those scholarship funds.