Arizona Eagletarian

Arizona Eagletarian

Monday, August 26, 2013

Redistricting -- Leach case update

In a minute entry ruling dated August 13 (the day of the last oral argument hearing), Maricopa County Superior Court Judge Mark Brain dismissed the individual redistricting commissioners as defendants in Leach v Arizona Independent Redistricting Commission.

Plaintiffs counsel, Lisa Hauser and Mike Liburdi, had argued vehemently (in writing) in response to the AIRC motion their fishing expedition [discovery efforts] would be hampered if the motion was granted. Commissioner Rick Stertz even objected to the motion, saying he really wanted to be a defendant. Recall that Judge Brain had wondered aloud about Rick Stertz's objection.
...Stertz' counsel filed an objection to the commission's motion saying he really did want to be a defendant. The judge wondered aloud why Stertz couldn't just write an op-ed. Wouldn't newspapers in the state readily publish it?
One has to wonder who is paying Lisa Hauser and Mike Liburdi (in this particular case) to challenge the Congressional map on the pretext that the AIRC forgot to dot some "i's" or cross some "t's." I suppose we can't blame Stertz or his attorney, John Munger, for trying to get the taxpayers to foot the bill for their effort to undermine the work of the commission. But really? It must take quite a bit of chutzpah.

Here's what Judge Brain said in his ruling:
The Commission is a legislative body with the capacity to sue and be sued in its own name. See Arizona Minority Coalition for Fair Redistricting v. Arizona Independent Redistricting Comm., 220 Ariz. 587, 208 P.3d 676 (2009); Ariz. Const. Art. 4, part 2, § 1(20). And the Court can grant full relief without the commissioners being named as parties. In the circumstances of this case, the Court does not believe the individual commissioners are necessary or proper defendants. Accordingly, the motion is GRANTED, and the individual commissioners are DISMISSED.
In theory, counsel for plaintiffs could appeal the ruling, but doing so would appear unbelievably absurd and make it that much more obvious that the case Hauser and Liburdi have brought is complete nonsense. So I will be most surprised if they appeal.

The blatant absurdity of the case being so much more apparent now anyway, I would hope that counsel for the AIRC would press the case, in the event they win, for an award of attorney fees to pay back the taxpayers. At least in the Harris case, there was a substantive question of law (whether the variances in district population diluted the votes of [predominantly Caucasian] Republicans) that made litigation a reasonable course of action.

That has never been the case with this lawsuit.

In fact, a minute entry ruling issued last fall, dated October 15, 2012, Judge Brain said:
IT IS ORDERED granting and denying in part the motion to dismiss as follows:
1. Counts 1, 3 and 6 of the First Amended Complaint are dismissed because they fail to state a claim upon which relief can be granted.
2. The entire First Amended Complaint is dismissed pursuant to Rule 8(a), because it is far from the “short and plain statement” required by Rule 8(a). Plaintiffs shall file a second amended complaint which complies with Rule 8(a) no later than November 9, 2012.
Hauser and Liburdi filed the second amended complaint as instructed. Given the obvious skepticism demonstrated by Judge Brain at the August 13 hearing -- when Liburdi stated plaintiffs would not be ready for trial until after the start of calendar year 2014, it is abundantly obvious that plaintiffs' challenge to the Congressional map will be a lot like Sisyphus trying to roll the boulder up a huge hill.





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