Arizona Eagletarian

Arizona Eagletarian

Tuesday, August 13, 2013

Redistricting -- Leach hearing Tuesday morning

Briefs, motions and requests for self-incrimination (admissions) have been flying at a seemingly furious pace the last few days in the Harris and Leach cases.

The final Harris brief pursuant to Judge Roslyn O. Silver's order last month was filed (on behalf of the plaintiffs) by Cantelme and contains predictable blather that breaks no new ground and covers no substantive points not already made in prior filings or in the actual trial (which wrapped up at the end of March, four and a half months ago now. The only thing different, from my uneducated vantage point is that Cantelme's language sounds much more desperate this time.

Case in point, Cantelme sinks to name calling by referring to the Arizona Independent Redistricting Commission's entire approach -- ensuring preclearance on the first effort -- with the clearly derisive and dismissive expression "preclearance-made-me-do-it." Of course he is arguing that, because of Shelby County, the AIRC was required to ignore the first criterion mandated in the state constitution -- to comply with applicable federal law.

That the five commissioners were supposed to know two years before the Supreme Court handed down the Shelby County ruling is, of course, patently absurd. But then again, what Cantelme has been saying and doing to attempt to undermine independent redistricting since 2011 have been obviously absurd all along.

In approaching his conclusion that the District Court should order the AIRC to reconvene and draw a new legislative district map, Cantelme tries to nullify the AIRC argument that Shelby County should only apply prospectively and not retroactively.
The IRC argues that this Court should follow the Chevron Oil Co. v. Hudson, 404 U.S. 97 (1971). Chevron Oil is the standard followed by a court to determine whether the case before it should be applied prospectively. Thus, in Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir. 2011), the Ninth Circuit determined that its instant ruling affirming a lower court decision denying an immigration applicant’s petition for cancellation of removal should be applied prospectively. Id. at 687.
Even if Chevron Oil applies here, the circumstances do not compel that Shelby County apply prospectively. The test for prospective-only application involves a three-part balancing test beginning with whether the “decision to be applied nonretroactively . . . establish[es] a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed.” Next, the court “weigh[s] the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrogressive operation will further or retard its operation.” Third, the court weighs “the inequity imposed by retroactive application” to determine whether it would produce “substantial inequitable results” or “injustice or hardship.” American Trucking Associations, Inc. v. Smith, 496 U.S. 167, 179 (1990) (quoting Chevron Oil, 404 U.S. at 106-07). (emphasis in bold added)
It seems to me that Shelby County, in nullifying a critical provision of the Voting Rights Act, overruled clear past precedent AND is deciding an issue of first impression whose resolution was not clearly foreshadowed. Of course, Cantelme would have us believe that HE did foreshadow (foretell) this whole situation. But I don't think that is what case law is about. However, there's a pretty good chance that I got at least part of that wrong (since I'm not a law school graduate).

Will quarterback Cantelme connect with his receiver on the Hail Mary play he's running with this brief? Now we wait to see what, if anything, will be decided by the federal court in the Harris case. 

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The issue before Maricopa County Superior Court Judge Mark Brain on Tuesday morning is whether to dismiss the five redistricting commissioners as defendants in the Leach case. The case will turn on whether Lisa Hauser is able to convince Judge Brain that the AIRC violated the procedures required by the Arizona Constitution as amended by voters for drawing district lines.

The AIRC had filed a motion to dismiss them as defendants but Hauser vociferously objected. She believes that if the motion is granted, it will be much more difficult for her to prove her case.

Adding to the intrigue, Commissioners Stertz and Freeman have hired their own legal counsel, on the taxpayers' dime of course, because they apparently see this case as an opportunity for them -- even though they had their chance and did have their ideas considered in the establishment of the Congressional district map now in use -- to throw a wrench into the works and despite their having been outvoted 3-2 in many votes. They apparently want to have the majority say (contrary to what the voters decided when authorizing the AIRC).

To that end, last week Stertz filed an objection to the Commission's Motion for Judgment on the Pleadings. (excerpt below)
Defendant Arizona Independent Redistricting Commissioner Richard Stertz (“Mr. Stertz”) hereby opposes the Motion for Judgment on the Pleadings filed by Mr. Stertz’s co-Defendant, the Arizona Independent Redistricting Commission (“the Commission”), on June 5, 2013 for the reason that the Commission’s counsel do not represent Mr. Stertz for the purposes of the motion, and Mr. Stertz is entitled to, and wishes to, remain a party to this lawsuit.
On or about April 3, 2013, Mr. Stertz advised the Commission in Writing that the Commíssion’s counsel (the law firms of Osborne Maledon P.A. and Ballard Spahr L.L.P.) did not represent him and were not authorized to file any documents, motions or pleadings on his behalf in any case. See letter dated April 3, 2013, attached hereto marked Exhibit A. This was based on the fact that the Commission’s counsel do not represent Mr. Stertz’s interests whatsoever, culminating in the Commission’s counsel ultimately calling Mr. Stertz as a hostile witness in the related federal case of Harris v. AIRC in March 2013. See excerpt of transcript of trial in Harris v. AIRC on March 25, 2013, p. 203:18-20, attached hereto marked Exhibit B.
This will no doubt be a part of the hearing this morning. The drama continues and the plot certainly does thicken.

Since the GOP controlled state legislature is probably cheering Stertz on from the sidelines, they will have no right to complain about the exorbitant run up of legal costs from Munger Chadwick (Stertz' counsel's firm) or from whoever will be representing Commissioner Freeman.

Additional Leach filings from Friday and Monday include a response to plaintiffs' first request for production of documents, objecting for the most part because the requests were overly broad. A natural result of the plaintiffs not having a case and really hoping the AIRC would goof and provide some basis on which they could say "gotcha." This strategy is also known as a fishing expedition.

Further, the AIRC responded to the plaintiffs' first set of "nonuniform interrogatories to defendants," as well as a response to plaintiffs' request for admissions.

Stay tuned as the drama continues to unfold.

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