Arizona Eagletarian

Arizona Eagletarian

Monday, January 4, 2016

Redistricting -- Today's Leach hearing

You may recall that Maricopa County Superior Court Judge Roger Brodman scheduled a hearing for today in the Leach case. Central issues included questions on depositions of Redistricting Commissioners, the role of the Secretary of State in the case, and whether the Attorney General should be disqualified from representing anyone adverse to the Commission.

According to observers in the courtroom, I've compiled the following report. I did not witness it first hand but add my commentary.

By one count, 17 attorneys, representing plaintiffs, the Secretary of State, the AIRC and individual commissioners attended. ALL of those attorneys, except MAYBE for the plaintiffs will be paid out of taxpayer funds -- for a case that deals, for the most part, with re-litigating issues already adjudicated, including rulings issued by the Arizona Supreme Court.

As such, Paul Charlton, who represents AIRC chair Colleen Mathis, raised the issue of the Arizona Constitution's gift clause. The Attorney General's office claimed (on behalf of the Secretary of State), that the gift clause was not at issue because the AG was ONLY seeking to represent the SOS, not the Leach plaintiffs.

The AG's argument, of course, is nonsense. Taxpayer funds are paying for most of the lawyers in the matter. THAT, even if a court doesn't see it that way, IS a gift of taxpayer funds to the plaintiffs. Two of those plaintiffs, Vince Leach and Don Shooter, are members of the Arizona Legislature and key members of the two appropriations committees. It's a gift, politically even if not legally.

Arguing for the AIRC, former Judge Colin Campbell made several points that should be fatal to the cause of the SOS/AG involvement in Leach. On the AG conflict of interest question -- which should clearly disqualify the agency from representing the SOS (especially as a plaintiff) -- Campbell referred Brodman to rulings by Judge Fink in 2011 indicating that the AG's conflict was obvious enough to disqualify.

That dovetailed into the issue of whether the SOS even has standing to challenge the AIRC as a plaintiff. The AG claimed that the SOS wasn't interested in challenging the Open Meeting Law position of the IRC, and therefore should still be allowed -- based on her claims regarding alleged constitutional violations -- to remain as a plaintiff. Hogwash.

Campbell also referred Brodman to the SCOTUS arguments transcript for the exchange between Scalia and Brnovich.

Remaining highlights mainly related to who's going to be deposed and for how long. Surprisingly, Commissioner Stertz said he's had enough of being deposed. He apparently sat for four hours last month and is being called for a couple more hours. But he doesn't want to do so. This despite his grousing about wanting everything in the commission to be open and transparent.

From the Arizona Eagletarian, December 1, 2015,
In addition to all of those filings, Commissioner Stertz filed a 29-page notice to the court of his position on the pending motions related to the protective orders. Basically, he proudly wants everyone to know he is waiving his legislative privilege. His notice concludes,
"While Commissioner Stertz does not dispute that his co-commissioners have a privilege that they are entitled to invoke, he does dispute that they “cannot be forced to sit for depositions.” Their privilege entitles them to refuse to answer questions at a deposition that are protected by that privilege; it does not entitle them to avoid being deposed altogether."
Therefore, Stertz notified the court that he does not oppose plaintiffs' motion to compel the depositions.
AIRC counsel also wants to depose each of the plaintiffs. I would LOVE to see Leach and Shooter have to spend six hours being grilled by attorneys. But plaintiff's counsel is resisting. Brodman's not buying it. Essentially, he is saying what's good for the goose is good for the gander. Brodman also wants the parties to confer and come to an agreement on depositions. Good luck with that. Perhaps a reminder about his admonition in the December 9 minute entry will help with that.
IF ANY ISSUES IN THE MOTION RELATE TO DISCOVERY PROBLEMS, COUNSEL SHALL CONFER TO ATTEMPT TO RESOLVE THEIR DIFFERENCES OR TO REDUCE THE AREAS OF DISPUTE. COUNSEL ARE REMINDED THAT THE COURT WILL LIKELY IMPOSE SANCTIONS AGAINST THE LOSING PARTY IN ACCORDANCE WITH RULE 37(a)(4), RULES OF CIVIL PROCEDURE.
Brodman did not rule today on any of the questions but indicated he would do so as quickly as possible.

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