Arizona Eagletarian

Arizona Eagletarian

Monday, January 31, 2011

Phoenix attorney Scott Day Freeman appointed to the IRC

Arizona House Speaker Kirk Adams announced today his appointment of Phoenix attorney Scott Day Freeman to be the first member of the Independent Redistricting Commission for the 2011 cycle.

Mr. Freeman is a partner in the law firm of Fennemore Craig.  His practice focuses on commercial and tort litigation.  He graduated from the Arizona State Law College in 1994 and also holds a degree in aerospace engineering from the University of Arizona.

He has volunteered with the Arizona Republican Party's Ballot Security Program for the last four election cycles.

Mr. Freeman also has been chancellor of the Barry M. Goldwater chapter of the Sons of the American Revolution since 2002.

UPDATE -- 11:30pm Monday, Jan 31.  Arizona House Minority Leader Chad Campbell tells the Arizona Eagletarian that he expects to make his appointment to the Independent Redistricting Commission on Wednesday, Feb 2, or at the latest on Thursday.

As soon as I find out, I will let you know.

Sunday, January 30, 2011

National Congress on Your Corner Day

To honor Tucson Congresswoman Gabby Giffords and the others shot on January 8, Rep. Jackie Speier (D-CA) last week introduced a resolution to declare a National Congress on Your Corner Day on the first Saturday in January after a new Congressional term begins.

Ms. Speier, herself a survivor of multiple gunshot wounds suffered when she accompanied the late Rep. Leo Ryan to visit the Peoples Temple cult in Jonestown, Guyana, also urges, in her resolution, that all Members of Congress observe such a day to honor those killed or injured in Tucson and to recognize the importance of Congress on Your Corner events throughout the year to engage with their constituents and fulfill the ideals of the Founding Fathers and precepts of the US Constitution.

I think this is a great idea.

Sunday, January 23, 2011

What does new ACC chair Gary Pierce intend to do to Arizona?

At 10 am tomorrow morning (Monday, Jan 24), new Arizona Corporation Commission (ACC) chairman Gary Pierce takes his first stab at undoing the accomplishments of his predecessor, Kris Mayes regarding renewable energy standards and R&D (research and development).

Arizona Revised Statutes 40-252 gives the ACC the authority to re-open previous decisions/rulings.  However, there appears to be litigation history putting limits on doing so.

Even though the ACC prior to this month was made up of three Republicans and two Democrats, same as it is now, Republican Commissioner Kris Mayes was very much a proponent of renewable energy and a big advocate for the solar industry in Arizona.  ACC chair Mayes, no longer eligible for re-election due to term limits, was replaced by former Arizona Senate President Brenda Burns.  Ms. Burns presided over the state senate when the epic Alt-Fuels Debacle was passed without adequate public review, ultimately costing Arizona taxpayers several hundred MILLION dollars before emergency legislation could be implemented to stop the bleeding.

The decision ACC chair Pierce is attacking now involves Arizona Public Service (APS), a regulated Investor-Owned Utility (IOU).  APS submitted written comments on January 13 in anticipation of tomorrow's hearing.


From the linked comments,

"As APS understands it, the Commission’s proposed modifications are not in response to any change of conditions that has arisen since the final decision in this matter was entered or in consideration of any other new circumstance not contemplated when the Commission finally approved APS’s 2011 RES [Renewable Energy Standard] Implementation Plan. Rather, the Commission seeks to reopen a final decision solely to effectuate a contemplated post-election change in Commission policy."


This is the beginning of what Arizona voters asked for, most likely without realizing the actual ramifications, by re-electing Gary Pierce and electing Brenda Burns.

UPDATE -- Jan 25, 11am

No vote or decision was made during yesterday's hearing other than to continue the hearing. It will resume at 9am Friday, Jan 28.  I understand the ACC wants APS to provide back up and documentation for some claims it made yesterday during testimony.

Friday, January 21, 2011

The list is finished.

To comply with Wednesday's ruling by the Arizona Supreme Court to add two more Republicans to the list of those eligible to become Independent Redistricting Commissioners, the screening panel met today at 11:30am.

As expected, two Republican panel members (Mick Rusing from Tucson, and Doug Cole who has been a GOP operative in Phoenix for many years) tried to get Christopher Gleason, who is closely tied to Tea Party GOP Congressional candidate Jesse Kelly added to the list.  However, Tucson Democrat John Leavitt objected, citing Gleason's involvement with a group called Conservatives for Congress in Tucson that ran attack ads against Gabby Giffords in the run up to the 2010 general election.   Gleason's application cites his involvement with that group. 

The panel declined to select Gleason for one of the open spots.

Instead, the panel selected Gilbert attorney Chrystal Russell and Tucsonan Richard Stertz.

Mr. Stertz, however, is likely also closely tied to Jesse Kelly but his application and interview (on Dec 8) seemed to indicate a temperament more conducive to group decision making.  Mr. Stertz is currently CEO of 4-Tucson/Vision 360.  Read more about Mr. Stertz's organization on the Tucson Citizen website.

The next step in the process is for Arizona House Speaker Kirk Adams to make his selection.  He has until January 31 to do so.

Thursday, January 20, 2011

Screening panel meeting set for Jan 21

To comply with the AZ Supreme Court ruling in Pearce/Adams' suit challenging the list of eligible redistricting commissioners, the Appellate Court Commission on Appointments will meet tomorrow at 11:30am.  According to the agenda, public comment will be taken, the panel may go into executive session to promote frank discussion of a given candidate or to conduct part of an interview of a potential candidate, and will ultimately vote to add two names to the list of eligible Republicans.

To recap, Arizona Senate President Russell Pearce and House Speaker Kirk Adams filed suit at the end of December hoping to get Arizona State University Law Professor Paul Bender disqualified from serving as a commissioner in the upcoming redistricting cycle.  To make their case, Pearce and Adams threw Republicans Mark Schnepf and Stephen Sossaman under the bus, asking for them also to be disqualified.  Further, the two GOP legislative leaders made a stink because a Tucson Republican (Christopher Gleason) linked to Tea Party candidate for Congress (Jesse Kelly) was excluded from the list.  For more background on those issues, check archived posts to the Arizona Eagletarian (links on the right side of your page).

Yesterday, the Court granted partial relief, disqualifying the two Republicans.  However, saying that service as a tribal judge does not make him a "public official" for this purpose, Professor Bender was affirmed and will remain on the list.

If you have anything to say about any of the candidates, the open meeting at 11:30am tomorrow at the State Courts Building, 1501 W. Washington in Phoenix, will be the time to say it.

I will be there and will post the outcome tomorrow afternoon.

Wednesday, January 19, 2011

AZ Supreme Court issues ruling in Pearce/Adams' redistricting case

In an order dated today and signed by Vice Chief Justice Andrew Hurwitz, partial relief is granted as follows:


Having reviewed the briefs submitted by the parties and amici and the applicable law and having heard oral argument in this matter, the Court accepts jurisdiction of the petition for special action.

IT IS ORDERED granting relief in part, as to nominees Mark Schnepf and Stephen Sossaman, who are ineligible to serve on the Arizona Independent Redistricting Commission (Redistricting Commission) because their positions as directors of irrigation districts are "other public office[s]" under Arizona Constitution article 4, part 2, section 1(3). The issues Petitioners raise concerning Schnepf's and Sossaman's unwillingness to serve and the effect of any application withdrawals are therefore moot and will not be decided by this Court.

IT IS FURTHER ORDERED that Respondents shall promptly identify two eligible individuals from the other Republican candidates to replace nominees Schnepf and Sossaman and thereby allow appointment of the initial member of the Redistricting Commission by Speaker Adams on or before January 31, 2011.

The Court concludes Petitioners have not established that nominee Paul Bender is disqualified from or ineligible for appointment to the Redistricting Commission based on his service as an appointed tribal court judge. Therefore, IT IS FURTHER ORDERED denying relief as to the claims challenging nominee Bender's eligibility. An opinion of this Court will follow in due course.
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So, I expect later today to find out when the screening panel will meet to comply with this order.  I will post that time as soon as I am able.

It's notable (and ironic) that Pearce and Adams get the desired relief regarding the two people they like and would consider appointing but the real target of their angst, Paul Bender is affirmed as eligible.

Tuesday, January 18, 2011

Five grey haired old white guys in robes!

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.

Monday, January 17, 2011

Response and Amicus brief link

The Arizona Supreme Court's High Profile Case Update page now has all of the documents available for viewing as filed in Pearce/Adams' lawsuit challenging the screening panel for redistricting commissioner candidates.

The court also indicates that live streaming video will be available to observe the oral arguments in this case at 2pm (Mountain Standard Time) tomorrow, January 18.

The schedule (and order) for the hearing is:

2:00 PM
CV-10-0405-SA ADAMS/PEARCE v COMMISSION ON APPELLATE COURT

KIRK ADAMS/RUSSELL PEARCE - 20 min
P A Gentala, Esq.

JEFF FLAKE/T FRANKS/B QUAYLE/P GOSAR/YAVAPAI COUNTY - 10 min.
S W Tully, Esq.

THE COMMISSION ON APPELLATE COURT APPOINTMENT - 20 min.
M R O'Grady, Esq.

LATTIE COOR/PAUL JOHNSON/VALLEY CITIZENS LEAGUE - 10 min.
P F Eckstein, Esq.
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I plan to attend in person and will post tomorrow evening about it.

Friday, January 14, 2011

Attorneys for Screening Panel file response to Pearce/Adams' suit

Today, the Arizona Attorney General, counsel for the screening panel, filed a response to the special action recently brought by Senate President Russell Pearce and House Speaker Kirk Adams.  In it, Pearce and Adams ask the Arizona Supreme Court to remove three names from the list of eligible Arizona Redistricting Commissioner appointees for the 2011 effort to redraw Congressional and legislative district lines.


The main arguments the AG presents in the response are:
  • Pearce and Adams lack standing to ask the Court to order the screening panel to re-do its list because they have not been harmed in any way by what has been done by the panel; 
  • Rather than anyone asking the Court to order any person to be removed due to being unqualified, IF anyone believes (after the fact) that an appointed commissioner is not qualified, the proper course of action is to file a "quo warranto" action; 
  • The term "public office" was properly construed by the screening panel; and 
  • To allow Pearce and Adams to get away with forcing persons included on the list to withdraw is a harmful precedent.

As I am not a legal analyst, I am certainly unqualified to predict how the Arizona Supreme Court will rule in this case, but I am encouraged by this filing.

I received the AG response by email.  It should soon be available for viewing online.  When I learn where it gets posted, I will update this blog to provide the link (should be Saturday morning).  Next up, I will read the amicus briefs filed today and will post on them shortly.

UPDATE -- Amicus briefs

Yavapai County Attorney Sheila Polk's brief alleges that the screening panel's inclusion of Bender, Schnepf and Sossaman on the list constitutes an "abuse of discretion" and was "arbitrary and capricious."  Further, her argument appears to revolve entirely around the notion that the Supreme Court should rule the panel did not provide sufficient political and geographic diversity to allow legislative leaders to make "meaningful" choices.  However, I don't find anywhere in this brief an objective standard or definition for what could be considered meaningful.  Overall, from my perspective (lacking a law school education), this brief seems notably uncompelling.  I was also unable to determine what her actual interest in supporting the Pearce/Adams' petition is.


Arizona's GOP Congressional Representatives (Flake, Franks, Gosar, Schweikert and Quayle) essentially argue that the definition of "public office" is "natural, obvious and ordinary."  In other words (they say), Pearce/Adams are right to ask for the court to intervene "just because."  Perhaps that's a bit oversimplified, but I don't see a compelling argument for overruling the deliberative conclusion that the screening panel came up with on its own.

The final brief was submitted by a group including former ASU president Lattie Coor, former Phoenix mayor Paul Johnson, the Valley Citizens' League (Phoenix) and the Arizona Latino Research Enterprise.  Listed as one of the attorneys for this group is former Arizona Supreme Court Chief Justice Stanley Feldman.  This brief largely echos the same points as the AG response summarized above.  Notable is the compelling arguments about why deference should be given to the way the screening panel construed the term "public office."  This brief, however, is limited to consideration of the situation with Professor Bender.  No mention is made of either Schnepf or Sossaman.

Thursday, January 13, 2011

Oral arguments in redistricting action to take place 2pm Jan 18

The Arizona Supreme Court today allocated 20 minutes each for oral arguments by Pearce/Adams, attorneys for the screening panel, and for the Amici groups (friends of the court) who will file their amicus briefs not later than tomorrow noon.  The group of GOP Arizona Congressmen will get 10 minutes and the group with former ASU president Lattie Coor will get 10 minutes.

I expect to have copies of those briefs later tomorrow (Friday) afternoon and will post about them.  The court order does, however, indicate that the GOP Congressmen will be supporting Pearce/Adams' special action and the Lattie Coor group will oppose it.

Also, tremendous news today, as reports from the University Medical Center in Tucson state that Gabby Giffords has made great progress today, having sat up, opened her eyes for 10-15 minutes and has moved both of her legs and both arms.

Tuesday, January 11, 2011

Amicus briefs to be filed in redistricting suit; funeral protest

The Arizona Supreme Court has today issued an order approving the filing of three amicus briefs regarding case CV-10-0405-SA.  This is the special action filed by Senate President Russell Pearce and House Speaker Kirk Adams against the screening panel responsible for compiling the list of eligible candidates to become Independent Redistricting Commissioners.

The order issued today states the briefs have not yet been filed, but must before noon on Friday, January 14.

The individuals or groups who intend to file briefs are 1) Yavapai County Attorney Sheila Polk; 2) Arizona's GOP Congressmen (Flake, Franks, Quayle, Gosar and Schweikert) and; 3) Lattie Coor, Paul Johnson (former mayor of Phoenix), the Valley Citizens League and the Arizona Latino Research Enterprise.

When I can get access to those briefs, I will post about it and will include links to view them online.

In other news, the Arizona Legislature is now working to pass an emergency (so it will become effective immediately upon the signature of Governor Brewer) bill to make protests which disrupt funerals in Arizona a crime. This is a response to announcement by the Westboro Baptist Church that it intends to protest the funeral of 9-year old Christina Green, who was killed last Saturday when an attempt was made to assassinate Arizona Congresswoman Gabrielle Giffords in Tucson.

The bill, modeled after an Ohio law which has been ruled constitutional by a federal court, has already passed the state senate and is expected to be sent to (and signed by) Brewer today.  Ms. Green's funeral is scheduled for Thursday, January 13 at 1 pm.  Pima County Democrats and Republicans are organizing a counter-protest to gather citizens to provide a peaceful buffer zone around the locations of this and other funerals or services of victims of this horrific tragedy.

UPDATE:  The Arizona Republic is reporting that the state legislature unanimously passed this bill and it's on its way to Governor Brewer's desk for signature, which is expected to take place today.

Wednesday, January 5, 2011

Andrei Cherny for Arizona Democratic Party Chair

Former Democratic nominee for Arizona State Treasurer Andrei Cherny announced his intention to run for chairman of the state Democratic Party when it convenes on Saturday, January 22nd, 1pm at the Wyndham Hotel at 50 E. Adams in downtown Phoenix.

Cherny's campaign facebook page states, "...[he] is a former AZ prosecutor and economic advisor and a current husband and dad. As our next State Chair, Andrei will be a unifying figure and a strong messenger for a compelling vision of where Arizona needs to go."

Blogger Carolyn Classen posted a letter Cherny sent out on his announcement.

Based on his strong campaign for treasurer, his broad background and experience, and his compelling statement of vision and direction for the ADP during his term, I support Andrei for chair of the Arizona Democratic Party.

It's also noteworthy that his opponent, Master Rodney Glassman, has campaigned vigorously thus far for the chairmanship.  However, whenever and wherever the subject of Cherny's candidacy for the position has been mentioned in recent days, Glassman's supporters have commented that Cherny is not legally able to run.  The salient point in this aspect of the situation is that Rodney can only rebut Cherny's supporters on the basis of a perceived technicality.  Rodney Glassman does NOT have the experience, the vision or the ability to credibility articulate the concerns of Arizona Democrats.  All he has is the ability to whine and throw tantrums.

For more background on Andrei Cherny, go here.

Tuesday, January 4, 2011

State Supreme Court sets hearing

The Associated Press reported this morning that the Arizona Supreme Court has scheduled a hearing for January 18 in the special action petition filed by Pearce and Adams challenging the screening panel on the redistricting commissioner candidate list.

Monday, January 3, 2011

You are there!

You are there!

Walter Cronkite, a long time ago, hosted a CBS News show by that title.  Well, now you may listen to the comments, discussion and votes from the December 29 meeting of the screening panel regarding the list of 25 names qualified to be appointed Independent Redistricting Commissioner.  The link is to an audio recording of that meeting.

Senate President-elect Russell Pearce's comments are noteworthy in that he declared his concerns to be, as I've reported previously, twofold.  First, that the list includes three people that he believes are not legally qualified to serve as Redistricting Commissioners; and that Tucsonan Christopher Gleason was excluded apparently because of his faith.

Pearce, in fact, declared that he does like and would, except for that they hold "public office," consider appointing Republicans Mark Schnepf or Stephen Sossaman.  This really helps get to the bottom line -- except for his deep concern (fear) about the possibility that Paul Bender could actually become a Commissioner -- he and his compadre Kirk Adams would not have filed the petition for special action to try to force the screening panel to change the list.

As soon as I have word on any further development about the lawsuit, I'll let you know.