Arizona Eagletarian

Arizona Eagletarian

Tuesday, December 15, 2015

Redistricting -- Leach case developments -- UPDATED 12-16-15 10:05 pm MST

The Arizona Independent Redistricting Commission did, indeed, meet on Monday, spending most of the time in executive session. When they emerged from behind closed doors (figuratively speaking, since it was a telephonic meeting), they voted on two action items related to guidance from legal counsel about the Leach case.

The Yellow Sheet wrote it up thus,
The IRC met yesterday evening to move forward on its legal defense in the last remaining case against the 2012 maps, Leach v. AIRC, which alleges that the commission violated a requirement in the Arizona Constitution that it use “grid maps” as the starting point of the remapping process. [My understanding is that the grid maps allegation is but one of several process allegations Leach makes.]
The commission took two votes. It voted 4-1, with Republican Commissioner Scott Freeman as the lone opposition vote, to move forward with a legal strategy discussed in executive session. IRC counsel Joe Kanefield said he couldn’t discuss the strategy, “but those actions will become apparent... as the litigation continues.” 
The second vote, which was unanimous, authorized counsel to defend the IRC against the open meeting law violations alleged in the most recent iteration of the Leach complaint. Kanefield explained that statutory open meeting law – not the constitutional open meeting law requirement that’s specific to the IRC – requires express authorization to defend against an alleged violation of the statute.
Maricopa County Superior Court Judge Roger Brodman recently settled, or at least partially settled, a dispute over whether the redistricting commissioners can invoke legislative privilege in the depositions requested by the plaintiffs, as commissioners Colleen Mathis and Linda McNulty have done. (Freeman and fellow Republican Rick Stertz voluntarily waived that privilege.)
In a Dec. 7 minute entry, Brodman said there’s no doubt that commissioners have legislative privilege, but that the privilege does not extend to administrative acts, such as the hiring of consultants. “In the event the non-waiving Commissioners refuse to testify on the grounds of privilege and plaintiffs contest the claim, the parties can submit disputes to the Court after a record is developed,” the judge wrote.
In a separate minute entry, Brodman also scheduled a Jan. 4 hearing to settle another issue that will sound familiar to longtime IRC watchers. Mathis and McNulty want Brodman to disqualify the AG as Reagan’s counsel in the case because the office advised the commission on open meeting law issues in the early days of the redistricting process. The courts disqualified then-AG Tom Horne from an open meeting law complaint in 2011 for the same reason.
Kanefield said the issue is important because Reagan, who is listed as a defendant – she replaced Ken Bennett in January – is now siding with the plaintiffs. Now that Reagan, formerly a nominal party, is taking a position in the case, the two commissioners believe it would be inappropriate for the AG to represent her, Kanefield said. Furthermore, Kanefield said the two commissioners will challenge Reagan’s right to take on a greater role in the case. “We have stated on the record that we believe her decision to change her status from a nominal party is inappropriate, and we have made it known that we plan to object,” he said after Monday’s meeting.
[ed. -- in the December 16 edition, the YS included a correction. "Yesterday’s report inaccurately stated that redistricting Commissioners Colleen Mathis and Linda McNulty will challenge Reagan’s new role in support of the plaintiffs in Leach v. AIRC. It should have stated that the Independent Redistricting Commission, as an entity, is challenging Reagan." The correction still doesn't seem to entirely clear things up, as the Dec 15 edition, quoted above, states they were indirectly quoting AIRC counsel Joe Kanefield. Since the AIRC did not authorize disclosure of its (the commission's) legal strategy immediately after the meeting, I will seek more specific clarification, from the AIRC, in the morning. It is true that from the motions filed (links embedded below) by the two commissioners, they are only seeking to intervene for the purpose of asserting attorney-client privilege and to have the court disqualify the Attorney General from representing Reagan.] 

The December 7 minute entry sets forth the court's decisions, rationale and orders regarding the motions and cross-motions that argue various points about upcoming depositions both by the commissioners waiving privilege (Freeman and Stertz) and those of the commissioners (Mathis, McNulty and former Commissioner Herrera) who are not waiving privilege.

Rather than explaining those parsed out rulings and orders, interested readers will likely find the minute entries themselves very interesting. They are linked above (I embedded the links in the text quoted from the Yellow Sheet... YS  had declined to do so).

Additionally, counsel for Commissioners Mathis and McNulty have filed motions to intervene and joinder respectively. Those filings hope to disqualify the Attorney General from representing Secretary of State Michele Reagan, seeking to intervene for the purpose of asserting attorney client privilege. The Attorney General previously represented and advised the AIRC on issues related to Open Meeting Law.

As quoted from YS above, former Attorney General Tom Horne was disqualified for this very reason. From Mathis' motion,
This motion is brought on an emergency basis because depositions in this case of Commissioners Freeman and Stertz are set to take place this Thursday, December 10, 2015 and Friday, December 11, 2015. The Attorney General is expected to participate in those depositions. The full extent to which the Attorney General was adverse to Intervenor became patent at a hearing before this Court on Friday, December 4, 2015, at which time the Attorney General took a position materially adverse to Intervenor. For that reason. Intervenor respectfully requests that the Court hold a telephone conference on this Motion and rule upon it prior to the depositions of Commissioners Freeman and Stertz, which the Attorney General plans to attend. [...]
Multiple attorneys from the Attorney General 's office participated in the Commission 's meetings and provided legal advice to the Commission in executive sessions regarding these redistricting issues. In addition, multiple attorneys from the Attorney General provided advice and training to the Commission regarding compliance with redistricting laws and the OML. Further, the Attorney General provided legal advice to individual Commissioners, including Intervenor, in numerous non-public communications related to the redistricting process, including in emails stamped by tile Attorney General's office with the "attorney-client privilege" designation. [...]
Not surprisingly, the Attorney General's file consequent to its representation of the Commission is voluminous, comprised in part of hundreds of non-public, privileged email communications between the Commission and the Attorney General regarding compliance with redistricting laws and the OML.
To review and get a sense of what was going on in the redistricting process when Horne was disqualified from the lawsuit, you may want to start here, (September 7, 2011) reading about Horne going to court to force Mathis, McNulty and Herrera to cooperate with his witch hunt. Then, on October 27, Horne was disqualified from that investigation because of the same conflict of interest that now will have to disqualify Brnovich. At that time, I cited the ethics rule at issue.
Ethical Rule 1.9(a), as set forth in Supreme Court Rule 42, states, “A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.”
Part of the argument set forth in Mathis' motion to intervene states,
III. The Attorney General's Representation Implicates the Gift Clause as It Has Clearly Benefited Plaintiffs.
As set forth in Article 9, Section 7 of the Arizona Constitution, the State and its subdivisions are prohibited from giving or lending "to any individual, association, or corporation." Ariz. Const. art. 9, § 7. "The gift clause was adopted 'to prevent governmental bodies from depleting the public treasury by giving advantages to special interests .. . or by engaging in non-public enterprises." State ex rel. Winkleman v. Ariz.Navigable Stream Adjudication Com 'n, 224 Ariz. 230, 235 n. 5, 229 P.3d 242, 247 (App.2010) (quoting Wistuber v. Paradise Valley Unified Sch. Dist., 141 Ariz. 346, 349, 687 P.2d 354, 357 (1984)).
Again, especially reflecting on the Arizona Constitution's Gift Clause, I have to wonder about the propriety of a member of the Arizona House of Representatives (Vince Leach) -- after several court rulings, including last summer's SCOTUS decision upholding independent redistricting -- being the lead plaintiff in a case that continues to bleed the General Fund.

These issues have already been litigated. The GOP has lost at every point thus far. When will the people of Arizona demand that the GOP stop running up the taxpayer costs for frivolous lawsuits?

Enough already.

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