Arizona Eagletarian

Arizona Eagletarian

Friday, April 20, 2012

Redistricting -- Supreme Court Opinion on Mathis reinstatement; ramifications UPDATED 9:15pm MST 4-20-12

In a 31-page opinion issued this morning, the Arizona Supreme Court spelled out, in exquisite detail, why Janice K Brewer and the GOP supermajority in the Arizona Senate overstepped their constitutional authority in the partisan effort to decapitate the Independent Redistricting Commission in the fall of 2011.

Lawyers for Brewer and the Senate argued among other things, that 1) the Arizona Supreme Court did not have jurisdiction to do anything about their removal of AIRC chairwoman Colleen Coyle Mathis and 2) the issue was solely a political question just like the impeachment of Evan Mecham in the 1980s and therefore not "judiciable."

Those arguments, of course, are complete nonsense. The opinion makes it very clear that the Arizona Constitution does, indeed, give the Supreme Court the right to intervene.


The IRC invoked our subject matter jurisdiction under Article 6, Section 5 of the Arizona Constitution. That provision grants this Court original jurisdiction to issue “mandamus, injunction and other extraordinary writs to state officers” and extends “[s]uch other jurisdiction as may be provided by law.” Ariz. Const. art. 6, § 5(1), (6); see also A.R.S. § 12-2021 (empowering this Court to issue a writ of mandamus “to any person . . . to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled and from which he is unlawfully precluded by such ... person”). (page 8, paragraph 12)


We exercised our discretion to accept special action jurisdiction because the legal issues raised required prompt resolution and are of first impression and statewide importance. (paragraph 14)


Respondents also argue that this case presents nonjusticiable political questions. The Arizona Constitution entrusts some matters solely to the political branches of government, not the judiciary... That a lawsuit involves “constitutional issues with significant political overtones,” however, “does not automatically invoke the political question doctrine.” (paragraph 16)

Under separation-of-powers principles, a nonjusticiable political question is presented when “there is ‘a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it.’” ... the significance of a textually demonstrable commitment to another branch is weakened when the Constitution expressly provides discernible and manageable standards for judicial review. (paragraph 17)
In this case, the Supremes say, there were actually judicially discernible and manageable standards. As an aside, this could be the reason the Court did not (in a different case recently) provide relief when Tim Hogan sued the governor and legislature for not providing adequate funding to cover all of the AHCCCS members voters had authorized by ballot measure (Prop 204 in 2000).


And the reason why this case is NOT comparable to the Mecham impeachment:

Second, impeachment under Article 8 of Arizona’s Constitution includes four important procedural checks to ensure a Senate trial’s just outcome. Article 8 requires the Senate to try all impeachments; when sitting for trial, senators must be on oath or affirmation to do justice according to law and evidence; the chief justice must preside over the trial; and two-thirds of the Senate must concur in the impeachment. (paragraph 22)

Section 1(10), on the other hand, does not require a trial; an oath, affirmation, or a just determination based on law and evidence; or representative oversight by another governmental department. The requirement of two-thirds Senate concurrence is a significant check on the governor’s removal power and poses a potentially formidable hurdle to curb abuse of executive discretion. But the absence in Section 1(10) of the other procedural and substantive safeguards found in Article 8 distinguishes the Senate’s role under Section 1(10) from its role in an impeachment. (paragraph 23)

Third, impeachment was uniquely designed by the framers of the federal Constitution to be a political process... In contrast, the constitutional provisions creating and governing the IRC, which include Section 1(10), were designed to remove redistricting from the political process by extracting this authority from the legislature and governor and instead granting it to “an independent commission of balanced appointments.” (paragraph 24)




The significance of the detail in this Court opinion will come into play in a big way this fall. In 2011, the legislature passed SCR1001 which put a measure on the 2012 general election ballot to inject the same kind of contentiousness into the Arizona Judiciary as we saw in the independent redistricting process over the last year.  This ballot measure makes numerous changes to the way judges are appointed in Arizona.

But it also, if approved, will politicize all decisions about contested matters of law. The following is all new language the GOP supermajority hopes voters will add to the Arizona Constitution:


B. THE SUPREME COURT SHALL MAKE EVERY WRITTEN OPINION OR ORDER THAT IS ISSUED BY A JUDGE OF A COURT OF RECORD, THAT RESOLVES A CONTESTED MATTER OF LAW AND THAT IS NOT SEALED OR CONFIDENTIAL PURSUANT TO LAW ELECTRONICALLY ACCESSIBLE TO THE PUBLIC THROUGH THE SUPREME COURT'S WEBSITE.

C. NOT LATER THAN SIXTY DAYS PRECEDING THE REGULAR PRIMARY ELECTION THE SUPREME COURT SHALL TRANSMIT A COPY OF THE JUDICIAL PERFORMANCE REVIEW OF EACH JUSTICE AND JUDGE WHO IS UP FOR RETENTION TO THE PRESIDENT OF THE SENATE AND THE SPEAKER OF THE HOUSE OF REPRESENTATIVES. NOT LATER THAN SIXTY DAYS PRECEDING THE REGULAR GENERAL ELECTION FOR THE RETENTION OF
JUSTICES AND JUDGES, A JOINT LEGISLATIVE COMMITTEE CONSISTING OF THE SENATE JUDICIARY COMMITTEE AND THE HOUSE OF REPRESENTATIVES JUDICIARY COMMITTEE, OR THEIR SUCCESSOR COMMITTEES, MAY MEET AND TAKE TESTIMONY ON THE JUSTICES AND JUDGES WHO ARE UP FOR RETENTION.
Remember the Joint Legislative Committee on Interfering with Independent Redistricting? This new procedure is like putting THAT committee on steroids.

Let's consider a scenario, shall we?

For YEARS, (elected) Tea Partisans (like Ron Gould, Rick Murphy, Don Shooter, Sylvia Allen, Terri Proud, Al Melvin, et. al.) have been complaining that the Arizona Supreme Court VIOLATED the Constitution. They do so nearly every day in committees, during floor votes and in communications (verbal and written) with lobbyists as well as their legitimate constituents.

ALEC (and US Chamber of Commerce) lobbyists then pay for lawyers and other researchers to scour the published opinions related to contested matters of law for poignant, inflammatory sound bites to incite the mob mentality. They pay political operators like Nathan Sproul to start astroturf movements similar to what we saw immediately after the 2011 AIRC selected Strategic Telemetry to be its mapping consultant.

Only NOW, they don't need Tom Horne to initiate an investigation to intimidate the AIRC. Instead, they made wild and recklessly false accusations about judges up for retention. Because it's now a political process (well, not actually yet, but IF voters approve that ballot measure, it will be), little, if anything can be done for damage control.

-----

Earlier this month, legal scholars and historians spoke at a forum about the Arizona Constitution. Speakers included former nominee for the AIRC chair and Dean emeritus of the Sandra Day O'Connor School of Law at Arizona State, Paul Bender and practicing Constitutional attorney Paul Eckstein. They mentioned that they consider certain aspects of the SCR1001 ballot measure troubling. But they seemed surprised when I suggested this was just a step before pushing direct election of judges.

Political watchers, that is anyone who has watched legislative processes over the course of a few years, can tell you that incrementalism is a key strategy for enacting change.

In public policy, incrementalism refers to the method of change by which many small policy changes are enacted over time in order to create a larger broad based policy change. 
SCR1001 presents numerous changes for voters to consider (as an all or nothing package), some of which are reasonable. For example, changing the mandatory retirement age for Supreme Court Justices to age 75 (now 70). Taken together, however, they can ONLY be reasonable construed as increments toward an ultimate goal of direct election of judges. And THAT is highly problematic.

The case of Mississippi Supreme Court Justice Oliver Diaz puts this all in focus. (video is about 11 minutes long)




By the way, the GOP supermajority in the Arizona Legislature, also in 2011, passed SCR1020 which is an incremental step in their push for so-called tort reform. It will be difficult for voters to say NO to a measure to prohibit someone who has committed a crime to sue the crime victim for harm to the perpetrator of the crime.

THIS is how lobbyists, their corporate masters and ALEC-owned lawmakers intend to sneak "tort reform" and direct election of judges past Arizona voters, in bite-size pieces.

We have not yet seen the degree of subterfuge they will employ come this fall.

And THAT is why level of detail -- in the Arizona Supreme Court opinion on its order to reinstate Colleen Mathis to the AIRC -- is important.

NOTE: A shorter video (trailer) on the documentary film, HOT COFFEE, which features Oliver Diaz' story here:



UPDATE adds detail from the 31-page Supreme Court opinion above.

No comments:

Post a Comment