from the Superior Court in Maricopa County The Honorable
Douglas Gerlach, Judge No. CV2013-011699 AFFIRMED
of the Court of Appeals, Division One 242 Ariz. 55 (App.
Christina Sandefur (argued), Aditya Dynar, Scharf-Norton
Center for Constitutional Litigation at the Goldwater
Institute, Phoenix, Attorneys for Andy Biggs, Andrew Tobin,
Nancy Barto, Judy Burges, Chester Crandell, Gail Griffin, Al
Melvin, Kelli Ward, Steve Yarbrough, Kimberly Yee, John
Allen, Brenda Barton, Sonny Borrelli, Paul Boyer, Karen Fann,
Eddie Farnsworth, Thomas Forese, David Gowan, Rick Gray, John
Kavanagh, Adam Kwasman, Debbie Lesko, David Livingston, Phil
Lovas, J. D. Mesnard, Darin Mitchell, Steve Montenegro,
Justin Olson, Warren Petersen, Justin Pierce, Carl Seel,
Steve Smith, David Stevens, Bob Thorpe, Kelly Townsend,
Michelle Ugenti, Jeanette Dubreil, Katie Miller, and Tom
Douglas C. Northup, Timothy Berg (argued), Patrick Irvine,
Carrie Pixler Ryerson, Fennemore Craig, P.C., Phoenix,
Attorneys for Thomas J. Betlach Timothy M. Hogan, Joy
Herr-Cardillo, Arizona Center for Law in the Public Interest,
Phoenix, and Ellen Sue Katz, William E. Morris Institute for
Justice, Phoenix, Attorneys for Edmundo Macias, Gary Gorham,
Daniel McCormick, and Tim Ferrell.
Roopali H. Desai, D. Andrew Gaona, Coppersmith Brockelman
PLC, Phoenix and Ann-Marie Alameddin, Arizona Hospital and
Healthcare Association, Phoenix, Attorneys for Amicus Curiae
Arizona Hospital and Healthcare Association and Amicus Curiae
American Cancer Society Cancer Action Network.
S. Burling, Pacific Legal Foundation, Sacramento, CA,
Attorneys for Amici Curiae Pacific Legal Foundation and
Howard Jarvis Taxpayers Association.
W. Johnson, Andrew Sniegowski, Snell and Wilmer LLP, Phoenix,
Attorneys for Amicus Curiae Health System Alliance of
JUSTICE BALES authored the opinion of the Court, in which
VICE CHIEF JUSTICE PELANDER and JUSTICES BRUTINEL, TIMMER,
GOULD, and LOPEZ and JUDGE STARING joined.[*]
In 2013, by a simple majority vote, the legislature enacted
H.B. 2010 to expand coverage under Arizona's indigent
health care program, Arizona Health Care Cost Containment
System ("AHCCCS"), with federal monies funding most
of the costs. To fund the remaining costs, the legislature
provided in A.R.S. § 36-2901.08(A) that the director of
AHCCCS "shall establish, administer and collect an
assessment" from Arizona hospitals.
We hold that the hospital assessment is not subject to
article 9, section 22 of the Arizona Constitution, which
generally requires that acts providing for a net increase in
state revenues be approved by a two-thirds vote in each house
of the legislature. This requirement does not apply to
statutorily authorized assessments that "are not
prescribed by formula, amount or limit, and are set by a
state officer or agency." Ariz. Const. art. 9, §
22(C)(2). Because the exception applies here, we reject the
constitutional challenge to the assessment.
In 2010, Congress enacted the Patient Protection and
Affordable Care Act ("ACA"), which provides federal
funding to states that choose to expand eligibility under
their state Medicaid program to all "individuals under
the age of 65 with incomes below 133 percent of the federal
poverty level." See Nat'l Fed'n of Indep.
Bus. v. Sebelius, 567 U.S. 519, 576 (2012). Under the AC
A, the federal government pays most of the costs for the
expansion, but federal funding is contingent on a state
satisfying various conditions, including paying a share of
the costs. See id. at 576, 586. Pursuant to the ACA,
Arizona enacted H.B. 2010 to expand AHCCCS eligibility to all
individuals with incomes not exceeding 133 percent of the
federal poverty level. 2013 Ariz. Sess. Laws, ch. 10,
§§ 5, 44 (1st Spec. Sess.). To pay for the expanded
coverage, H.B. 2010 required the director of AHCCCS to levy
an "assessment" on Arizona hospitals. A.R.S. §
After the governor signed H.B. 2010, then-state-senator Andy
Biggs and thirty-five other legislators who had voted against
the bill (the "Opponents") and three citizens filed
this action against AHCCCS Director Thomas Betlach and others
(collectively the "Director"). The lawsuit sought
to enjoin implementation of the hospital assessment, alleging
that it violates article 9, section 22 of the Arizona
Constitution because § 36-2901.08 was not approved by a
two-thirds vote. Although the superior court initially
dismissed the case for lack of standing, we reversed and
remanded for further proceedings. Biggs v. Cooper ex rel.
Cty. of Maricopa, 236 Ariz. 415, 420 ¶ 21 (2014).
On remand, the parties filed cross-motions for summary
judgment. The superior court ruled that § 36-2901.08 was
properly enacted by a simple majority because the law does
not impose a tax but instead falls within an exception listed
in article 9, section 22. The court of appeals affirmed.
Biggs v. Betlach, 242 Ariz. 55, 57 ¶ 2 (App.
We granted review because the application of article 9,
section 22 to the hospital assessment presents legal issues
of statewide importance. We have jurisdiction under article
6, section ...