Arizona Eagletarian

Arizona Eagletarian

Monday, May 21, 2012

Redistricting -- Motion to Dismiss UPDATED 5-22-12 6:30pm MST

At the deadline for response to the lawsuit in Maricopa County Superior Court challenging the Congressional district map, attorneys for the Arizona Independent Redistricting Commission filed a Motion to Dismiss the suit altogether. From start to finish, the AIRC motion attacks the lawsuit as baseless and absurd.
The Complaint uses innuendo, selectively extracted transcript excerpts, and speculation to weave a conspiracy theory intended to cast doubt on the Commission’s work. Lacking any actionable, substantive complaint regarding the redistricting plan – they nowhere allege that the Commission failed to accommodate the substantive constitutional goals, for example – Plaintiffs instead focus on manufacturing flaws with how the Commission complied with the procedural requirements set forth in Article 4, Part 2, Section 1 of the Arizona Constitution.

The Complaint does not contend that the Final Congressional Map fails to accommodate the substantive constitutional goals that form the core of the Commission’s task. Instead, the Complaint alleges various technical violations in connection with the various procedural requirements.


Plaintiffs do not assert that the Commission failed to accommodate the six constitutional goals before approving the draft congressional map. Instead, Plaintiffs ask this Court to impose new procedural requirements that do not exist and that “intrud[e] into the discretionary aspects of the [Commission’s] legislative process[.]”


Plaintiffs’ fourth claim alleges that their rights were violated because the Commission did not take an up or down vote on the legislative recommendations made during the public comment period and “treated its responsibility to consider the Legislative recommendations as discretionary.” The requirement to “consider” does not state, direct, or even imply that the Commission must take a vote or any other formal action on the Legislature’s recommendations.

More importantly, the public record on which the Complaint relies shows beyond any doubt that the commission took its obligation to consider the recommendations seriously. The public agendas for the November 29 and 30 meetings included specific agenda items to consider the Legislature’s comments.


Aside from the bogus legal claims, the Complaint should be dismissed to the extent it ignores this rule in favor of using its allegations as a soap box for irrelevant accusations. “A complaint that is ‘argumentative, prolix, replete with redundancy . . . [and] consists largely of immaterial background information’ is subject to dismissal.”


The Complaint has roughly sixty paragraphs (¶¶ 35-93) of “conspiracy-theory” wind-up that have nothing to do with the claims asserted and serve no purpose other than to prejudice and disparage the Commission, including:
· Allegations concerning Chair Mathis’s application to the AIRC, including that she “omitted critical information” (Compl. ¶¶ 35 – 45).
· Allegations regarding the Chair’s spouse (Compl. ¶¶ 41 – 45).
· Allegations that the AIRC violated the Arizona Constitution in appointing co-vice-chairs. (Compl. ¶¶ 46-48).
· Allegations concerning the AIRC’s procurement of legal services, including that Mr. Kanefield was a “newly minted Republican.” (Compl. ¶¶ 54 – 57).
· Allegations relating to the procurement of the mapping consultant. (Compl. ¶¶ 61-77).
· Allegations relating to alleged violations of the State’s open meeting law, which the Superior Court has previously dismissed. (Compl. ¶¶ 78-93).
Plaintiffs do not even try to connect this “argumentative” and “immaterial background information” with the specific claims for relief.

The Complaint asserts a series of violations of constitutional requirements that do not exist or that depend on absurd interpretations of the constitutional procedures. In addition, the alleged open-meeting violation for which Plaintiffs seek relief fails to allege an actual violation of the open meeting clause in Article 4. Accordingly, the Commission respectfully requests that the Court dismiss the Complaint in its entirety. (emphasis mine)
A number of exhibits (such as transcripts from public meetings of the AIRC from last fall) were filed with this motion. I expect to receive them (the exhibits) tomorrow. I expect to add them as an update to this blog post at that time.

Now, for my impression:

What could Lisa Hauser, who represented the first AIRC and litigated a number of similar issues, possibly have said to the people listed as Plaintiffs in this civil action? Could, would or should Hauser have advised them (tea partisans Vince Leach, Lynne St. Angelo and Senator Don "shoot 'em up" Shooter) that they had even a snowball's chance in hell that this complaint would provide them with any "relief?" I can't imagine.

The question rises again as to who in the world would be paying for Hauser and Liburdi to file this lawsuit?


The Associated Press filed a story today about the other suit (filed in federal court). The issue? That one member of the three-judge panel assigned to the case is Neil Wake. Judge Wake represented Arizona Republicans in redistricting litigation ten years ago. Attorney Michael Mandell cited Wake's experience as a concern, but others, including Paul Eckstein (who also represented the Minority Coalition ten years ago) and current AIRC Democratic counsel Mary O'Grady dismissed those concerns.

Wake recently ruled in favor of Mary Rose Wilcox's claim -- against disbarred former Maricopa County Attorney Andrew Thomas -- that the county must pay the $975K for which Wilcox agreed to settle.

By the way, response by the AIRC to the federal suit is due by close of business on Thursday. Because there is the potential of an actually substantive question in that case, I expect that response to be significantly different than what was filed today.

UPDATE 2:45pm MST 5-22-12

The Associated Press has reported that attorneys for the Republicans challenging the STATE LEGISLATIVE district maps have dropped their request for the federal three judge panel to draw an interim set of maps.

On a related note, an attorney familiar with redistricting cases (but not working specifically on these lawsuits) has said (despite reluctance to voice any certainty) he thinks the AIRC has a good shot at getting both suits dismissed.

Exhibits filed with the AIRC Motion to Dismiss yesterday are found here, here and here.

UPDATE 6:30pm MST 5-22-12

The (Republican) Plaintiffs' Notice of Withdrawal of request for an interim legislative map is as follows:
PLEASE TAKE NOTICE: Plaintiffs withdraw any effort to obtain preliminary injunctive relief to affect the 2012 elections. Plaintiffs have been urging the Independent Redistricting Commission (“IRC”) to meet and discuss a pre-trial schedule and the other matters required by the stock case management report form and form of Rule 16 order, posted on the Court’s website, and a meeting has been suggested but not confirmed for Thursday or Friday, May 24 or 25, 2012. To proceed orderly and businesslike, Plaintiffs had intended to raise the matter of withdrawing preliminary injunctive relief for 2012 at such meeting so that it could be taken up as part of arriving at an overall proposed schedule. To that end, Plaintiffs had offered the Citizens Clean Elections Commission the same stipulation that they reached with Maricopa County and that was filed yesterday. For the sake of efficiency and to avoid any waste of judicial or party resources, Plaintiffs will accelerate their plans, and announce now their intention to bypass preliminary injunctive relief for the 2012 elections. Plaintiffs will continue to pursue injunctive relief to prevent the IRC’s legislative plan, adopted on January 17, 2012, from being used for any other election. 
This raises a few questions, which I will pursue tomorrow (Wednesday). Namely, what meeting is Liburdi (the Plaintiffs' attorney who signed the Notice) talking about; what stipulation was reached with Maricopa County and what role does the Citizens Clean Elections Commission have in this situation?

Obviously, apart from the lawsuit, both the CCEC and each county government have a stake in having new maps finalized for use in the 2012 elections. Maricopa County, I believe, had sought status as an intervenor to make known to the Court that ANY changes to maps for the 2012 election would cause chaos. Legislative candidates have a deadline within days from now to have their nominating petition signatures turned in.

Now, THIS particular turn of events would seem to be very significant, at least to somebody. Back in April, that august daily gossip sheet (a legend if only in the mind of the writers) published by the Arizona Capitol Times (The Yellow Sheet Report) quoted an unnamed Republican source:
FIRST THINGS FIRST (April 27) One source familiar with the legal actions told our reporter today that the primary goal of the lawsuit was to get an injunction against the maps, thus preventing them from being used this cycle. “It’s all about the TRO [temporary restraining order]. Once we get that, then we can litigate the whole thing,” the Republican source said. If an injunction is granted, the source said the attorneys can begin deposing various witnesses – including Mathis, McNulty and Herrera, all of whom refused to comply with the open meeting law investigation. (emphasis mine)
My hunch is that the Republican source was Mike Liburdi, the Plaintiffs' attorney. It sounds like his voice. And it also, in my view, like Liburdi has been known to do, overstates his case and ends up having to backtrack. Obviously, I could be wrong, but it's still my hunch.

Another intriguing aspect of the Notice of Withdrawal is that David Cantelme and his partner are listed as attorneys for the Plaintiffs. I'm not sure if that connection had been made last month with any of the filings that had been reported on here or by corporate media.

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