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Posts Tagged ‘separation of powers’

On Monday, I summarized proposed Arizona class action reform legislation forwarded to me by Shawn Aiken of Aiken Schenk Hawkins & Ricciardi P.C.  Yesterday, Aiken forwarded the final version of the class action bill as introduced before the Arizona Senate.

Click here for a copy of SB 1452.

Aiken also noted that there could be challenges to the legislative power to enact a new class action rule:

Our state constitution has many unique provisions. The one that will be invoked here is this: “The supreme court shall have . . . [the] [p]ower to make rules relative to all procedural matters in any court.”  Arizona Constitution, Article 6, Section 5.  The question will be what is more procedural than judicial certification of class actions?

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The U.S. Supreme Court heard oral argument Monday in a Horne v. Flores, a case that originated as a class action against the State of Arizona for insufficient funding of education for non-native-English speaking students.  For a report on the oral argument, see this AP article

The case is interesting from a variety of perspectives, but perhaps most interesting is that it pits different officials from the same state against each other.  The petitioners include the Superintendent of Public Instruction and the Speaker of the state’s House of Representatives.  Along with the original class representatives, the respondents include the State of Arizona and the Arizona State Board of Education.

The appeal arises from the denial of a Rule 60(b) motion for relief from a series of previous orders from a federal court following a finding that the state’s programs for educating students who do not speak English proficiently violated the Equal Educational Opportunity Act (EEOA). 

The appeal raises complex questions of federalism, standing, and separation of powers.  Petitioners argue, among other things, that the federal court’s continued supervision and attempts to require compliance with previous orders must be reconsidered in light of the existence of the No Child Left Behind Act (NCLB) and a recent state enactment that increased funding for English language programs.  The Speaker of the House and President of the Senate intervened “as presiding officers of their respective legislative bodies,” which had enacted the state English language funding law found by the federal district court to be inadequate to comply with its earlier judgments. For links to the briefs filed by the various parties, see the ABA’s website:

http://www.abanet.org/publiced/preview/briefs/april09.shtml#08294

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