Arizona Eagletarian

Arizona Eagletarian

Thursday, December 13, 2012

Redistricting litigation update(s)

Since we last met (or since I last wrote about Arizona's independent redistricting), a number of things have taken place in lawsuits pending in federal and state court.

The Arizona Court of Appeals on Tuesday issued a 59-page opinion affirming the Superior Court ruling that Attorney General Tom Horne had no justification for his 2011 witch hunt (investigation into possible Open Meeting Law violations).

The IRC has the capacity and standing to bring this action for declaratory and injunctive relief. As a matter of law, the OML [statutory Open Meeting Law] applies to the IRC. The communications alleged in the petition for enforcement, insofar as they pertain to hiring the mapping consultant, are not protected by legislative privilege. There is, however, no reasonable cause to support the OML investigation. We affirm the superior court's entry of summary judgment in favor of Appellees [AIRC] and the injunction against further investigation under the OML of the acts alleged in the petition for enforcement. (emphasis added)
The opinion is 59 pages long because the court went into painstaking detail on what, where and why the AIRC is and is not subject to the Open Meeting Law spelled out in Arizona Revised Statutes. Boiled down to its essence, however, the AIRC is subject to OML except and to the extent the statutes conflict with the Open Meeting Clause in the constitutional language about the commission.


In my most recent previous post on redistricting, both parties to the federal court challenge to the state legislative district maps had signed a proposed case management plan that presented an overview of the case and what each side believed the other needed to prove in order to prevail. A key point of that proposed plan is that the AIRC stated it needs more time to adequately prepare than the proposed March trial dates would allow.

Yesterday, Judge Roslyn Silver issued a 4-page order setting forth a firm March 25, 2013 trial start date, specifying other parameters for pre-trial preparation and noting a case management conference to be held at the Sandra Day O'Connor federal courthouse in Phoenix on Wednesday, December 19 at 4:30pm. Among the matters to be discussed at next Wednesday's conference is whether the Commission or any of its members should be dismissed as defendants in the case.

Silver also notes that parties must be prepared Wednesday to discuss the issues raised in the AIRC motion for judgment on the pleadings (filed Dec 3). That motion asks the court to dismiss the commissioners as parties to the lawsuit and to dismiss the second claim for relief. From the motion for judgement on the pleadings:

The second issue necessitating review is the State of Arizona’s Eleventh Amendment immunity for the Second Claim for Relief, which seeks to enjoin state officers to conform their conduct to state law. The Eleventh Amendment prevents a federal court from entertaining, without the State’s consent, “a claim that state officials violated state law in carrying out their official responsibilities.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 121 (1984)*. The Commission is asserting the State’s Eleventh Amendment immunity** over Plaintiffs’ Second Claim for relief.

The second claim for relief, in the second amended complaint asks the federal court three-judge panel to declare the legislative district map in violation of the Arizona Constitution. However, the 11th Amendment bars federal courts from using state (Arizona) law to rule against states (Arizona).
ARIZ. CONST. art. 4, pt. 2, § 1(14)(B) requires the IRC to draw legislative districts with equal population to the extent practicable. The IRC could have drawn legislative districts that achieved the ideal population had it wanted to do so, just as it did with congressional districts. To do so, however, would have prevented the McNulty/Herrera/Mathis bloc from maximizing the number of Democratic-plurality districts. As a result, the McNulty/ Herrera/Mathis bloc deliberately defied the equal population requirement of ARIZ. CONST. art. 4, pt. 2, § 1(14)(B) for the sole purpose of maximizing the partisan interests of the Democratic Party. The Final Legislative Map therefore violates the equal population requirement of ARIZ. CONST. art. 4, pt. 2, § 1(14)(B), and thereby injures Plaintiffs, and each of them, and is null and void.

In the Congressional district map challenge (currently before Maricopa County Superior Court Judge Mark Brain), documents filed last week include the AIRC response to the second amended complaint (17 pages); a motion to dismiss claims three and six of the second amended complaint (7 pages); and a stipulation to dismissal of the first claim of the second amended complaint (3 pages).

The second amended complaint, to which these three documents refer, is found here.

The stipulation simply recognizes that Judge Brain had dismissed that particular claim and plaintiff's counsel (Hauser) wanted to reserve the right to appeal that particular dismissal.


*Note (partial quote from
Ct. Majority: When a suit is brought against a state official,  it is brought against the State itself.  Whether the parties are seeking injunctive relief or actual damages before a Fed. Ct., a suit against state officials on the basis of state law, cannot be entertained.  The state is the real and substantial party at interest, and therefor, the state immunity under the 11th is preserved.
**Note (partial quote from the June 2010 Harvard Law Review article on the 11th Amendment by Bradford R Clark):

The traditional “immunity” theory, currently embraced by a majority of the Supreme Court (but few academics), argues that states enjoy broad constitutional sovereign immunity beyond the terms of the Amendment. Proponents of broad immunity regard the Amendment’s text as unacceptably underinclusive because it bars suits only by out-of-state citizens. In Hans v. Louisiana, the Court famously characterized a citizen’s suggestion that “[t]he letter” of the Amendment left him free to sue his own state as “an attempt to strain the Constitution and the law to a construction never imagined or dreamed of.” In the Court’s view, the purpose of the Amendment was to bar all suits by individuals against states.

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