It was 2pm at the Arizona Supreme Court. Time for oral arguments in Russell Pearce's and Kirk Adams' lawsuit challenging the list of eligible Independent Redistricting Commissioners.
Arizona's chief justice, Rebecca White Berch, recused herself because she chairs the screening panel itself. That leaves four old white guys. To take Berch's place on this case, recently retired Justice Michael Ryan was assigned to sit in. I'm not knocking old white guys, per se... since I kinda am one too. Just setting the stage, okay?
Peter Gentala, counsel for Pearce and Adams started off by beginning to recite the issues put forth in the initial filing in this case. He didn't get very far before the justices interrupted to begin the questioning. Did Gentala believe the screening panel acted in bad faith? Why was a special action now better than suing if, after appointing someone, a commissioner is thought to not meet the constitutional requirements?
To get at the heart of the question of the correct definition of "public office" Justice Bales asked what may have been the most pertinent question of the day. Are the water district board members (Schnepf and Sossaman) required to file financial disclosure statements and campaign finance reports? Justice Bales cited (but didn't quote) Arizona Revised Statutes Section 38-542. The same question was asked of other counsel in the hearing. NO ONE knew the answer.
ARS 38-542 states, in pertinent part " In addition to other statements and reports required by law, every public officer, as a matter of public record, shall file with the secretary of state on a form prescribed by the secretary of state a verified financial disclosure statement covering the preceding calendar year ending December 31." The section continues on to list what the disclosure must include. (emphasis mine). While really the question regarding Schnepf and Sossaman is just a technicality, if Pearce and Adams have no legitimate claim to be bullying those two off of the list, that would likely also help to undermine their claim about Bender.
Apparently, Yavapai County Attorney Sheila Polk's interest in this lawsuit (at least one justice seemed to think) was with the lack of geographic diversity in those who made the final list approved by the screening panel. In other words, the fact that only one of the Republicans on the list is from outside of Maricopa County. One justice asked the attorney arguing for Polk what the percentage of Arizona's population live outside of Maricopa and Pima Counties. Mr. Fields, Polk's counsel, said he thought it was about 30 percent. Justice Hurwitz said it appears that population (outside of Maricopa and Pima) is overrepresented on the screening panel and therefore, claiming bad faith on the part of the panel regarding geographic diversity seems unreasonable.
Speaking last, former Chief Justice Stanley Feldman argued on behalf of the group that included Lattie Coor. That group limited its concern to the claims of whether Professor Bender is qualified to serve as a commissioner. Ms. O'Grady, on behalf of the screening panel, argued that the court should NOT take jurisdiction in this special action lawsuit, but wait until someone is appointed and if they don't like it, let them sue then. However, the Court asked Feldman for his thoughts on that very issue. He paused, then jokingly quipped that Ms. O'Grady may have him indicted for this, but he believes they should take up this issue and rule on Bender now because the issue is before them now. If they do not, it may harm Bender's chances of being selected by the first four appointed commissioners due to expectation of a lawsuit if they do choose him.
As I've said before, I'm not a legal analyst. So, I will not even venture a prediction on the outcome. Associate Chief Justice Hurwitz said they will take the matter under advisement. However, understanding the urgency of the matter, they will rule as soon as they can.
I'm cautiously optimistic.