Sunday, December 11, 2011

Redistricting -- more on the Open Meeting ruling

On Friday, Maricopa County Superior Court Judge Dean Fink issued a six-page ruling that spelled out, in exquisite detail, that the Arizona Independent Redistricting Commission is subject to the Open Meeting Clause in the Arizona Constitution, rather than the statutory Open Meeting Law (A.R.S.§ 38-431 et seq).

The ramifications of the ruling are dramatic and far reaching. Opponents of Independent Redistricting, at least from the peanut galleries* of the online comment forums of newspaper websites, have already taken to complaining this ruling means the AIRC can conduct its business in secret. That is specifically precluded by any and every legitimate interpretation of this court order.

The substantive and salient points of law made in Fink's ruling go well beyond beating back a partisan attack on Democratic (and INDEPENDENT) commissioners. Parallel to the way the Supreme Court cited the intent of the Prop 106 drafters in its interpretation of terms such as "gross misconduct" and "neglect of duty," Fink cites:
The rule relevant here, which governs the conduct of its business, is set forth at § 1(12): “Three commissioners, including the chair or vice-chair, constitute a quorum. Three or more affirmative votes are required for any official action. Where a quorum is present, the independent redistricting commission shall conduct business in meetings open to the public, with 48 or more hours public notice provided.” (To distinguish this from the Open Meeting Law, the Court will refer to it herein as the “Open Meetings Clause,” or simply the “Clause.”) There is no dispute that the Clause is binding on the IRC. The question is whether the legislature may bind the IRC to rules more stringent than those in the Clause.
Fink goes on to answer that question:
The Court can only conclude that, while openness was important as reflected by the inclusion of the Open Meetings Clause, more important was insulating the IRC from interference by the political branches.
 Applying the Open Meeting Law to the IRC would subject it to political influence from two sources. The first source, obviously, is the legislature. If the legislature can, through its plenary legislative power, dictate how the IRC is to conduct its business and impose penalties for non-compliance, that power cannot be limited to open meetings; it can be used to harass and hamstring the IRC. The second source is the executive, specifically prosecutors such as the Attorney General and the various county attorneys, all of whom are empowered to investigate alleged Open Meeting Law violations. The threat of prosecution, even a baseless one, can be reasonably expected to intimidate its target. (emphasis mine)

But what about claims by foes of INDEPENDENT redistricting that this ruling means the AIRC can do whatever it wants, without public scrutiny? Well, one current member has openly indicated he believes sunlight is the best disinfectant. That Commissioner (Stertz) blew the whistle for Arizona Attorney General Tom Horne.

Now, if I were to view this situation entirely along partisan lines, I would use different expressions to characterize Stertz. And maybe I have done so already. However, at this moment, I do believe that a lot of the partisan rancor we've seen in the last six months would not have been as intense if Stertz had exercised more discretion in his disclosures. I have (and still do) criticize him for doing so. After all, don't "they" say that discretion is the better part of valor?

Nevertheless, if we had not had the litigation and subsequent rulings this year, the threat of litigation would have been hanging around the necks of the commissioners indefinitely. So, ultimately, rather than blame Stertz, I'll be thankful that we have a JUST system to clarify the issues. For redistricting this year and in the future. Stertz actually helped catalyze the situation, bringing it to a head, sooner perhaps than would have otherwise been the case.

Despite the partisan clamoring from Andy Biggs(hot), Frank Antenori, John Kavanagh, Proud Terri, "Captain Al" Melvin and others of their ilk, INDEPENDENT redistricting will not go away anytime soon. Not even in the next decade.

To the contrary, I believe what we are doing in Arizona will spread rapidly. California conducted a similar, voter mandated, redistricting this year, having taken the hint from Arizona's 2001 effort. In 2010, Director Jeff Reichert released Gerrymandering - The Movie. In 2011, perhaps nothing brought more national attention to the issue than Jan Brewer's failed attempt to decapitate the AIRC.  It can only grow from here and spread further throughout the United States.

But I digress.

While Fink's ruling precludes legislative inter-ference and executive branch prosecution, it set forth that any Arizona citizen has standing to bring a Special Action in court to compel compliance with the Open Meeting Clause.

The Court therefore concludes that the Open Meeting Law, A.R.S. § 38-431 et seq., cannot be applied to the Independent Redistricting Commission. This leads to a second question: does the prosecutorial authority of the State extend to enforcement of the Open Meetings Clause, beyond the authority possessed by any citizen of Arizona to compel compliance by filing a special action?

The other major point (and precedent) Fink makes is to clarify that "legislative privilege" extends to the official acts (and votes) of the members of the AIRC.

...the doctrine of legislative immunity protects the official acts of the IRC and individual commissioners.  The doctrine of immunity for the performance of legislative acts is one long predating statehood. See Gravel v. United States, 408 U.S. 606 (1972) (outlining its history in common law). It applies to “actions that are an integral part of the deliberative and communicative processes utilized in developing and finalizing a redistricting plan, and when necessary to prevent indirect impairment of such deliberations.” Arizona Independent Redistricting Comm. v. Fields, 206 Ariz. 130, 139 ¶ 24 (App. 2003) (internal quotation marks omitted). Contrary to the State’s argument, the choice of a consultant is a legislative, not an administrative act, even though some preliminary and follow-up work may be delegated; the allegation here is that three commissioners improperly agreed on the choice of consultant, not on the application process or the contractual compensation of their choice. See id. at 140 ¶ 29-30. The “deliberative and communicative processes” involved in choosing the consultant are therefore necessarily privileged.
On Friday, shortly after first reading Fink's ruling, I engaged in a brief online chat with a friend who also has been following the AIRC. When I attempted to explain parallels I see between this situation and what the Arizona Legislature has done recently regarding the Commission, he chided me on the "but they do it too" appearance of my argument. Of course, I understand that claiming something is acceptable just because "they do it too" (whoever "they" may be) is a logical fallacy. But that's not what is going on here.

When Frank Antenori grouses about Brewer failing to honor the deal he believed she had made with the senate, we (you, me and anyone else) has every right to call attention to the hypocrisy, the vote trading (which more than one senator acknowledged took place) and the political logrolling. But we do not have the right to prosecute them in court for it.

Likewise, nobody can prevent GOP activists or tea partiers from complaining about the AIRC decision to hire Strategic Telemetry as its 2011 mapping consultant. But that does NOT give them standing to legitimately claim "gross misconduct" or "substantial neglect of duty," occurred, even though they tried like the Dickens to get everyone to believe it did.

This ruling also puts in perspective what some who were close to the 2001 Arizona redistricting process say were mapping deliberations conducted in executive session. (I cited this sometime last summer, though I do not have the specific dates at this time).

The State’s argument that immunity would open the door to evils like bribery and embezzlement is not persuasive. [**]Legislative privilege does not shield those who misuse public office for personal gain. But no such accusation has been made against any of the IRC commissioners. The allegations against them are that they failed to perform their official legislative acts in the proper manner. This is fully within the scope of the privilege.
Therefore, the Court finds that the Open Meeting Law, A.R.S. § 38-431 et seq., does not apply to the IRC, which is governed instead by the open meetings language of Article IV Pt. 2 § 1(12) (the Open Meetings Clause). It further finds that neither the Attorney General nor the Maricopa County Attorney may proceed in their investigation, except as provided by the Rules of Procedure for Special Actions.
For the foregoing reasons, as well as others expressed by the IRC and the individual commissioners in their briefing and argument, the Motion for Summary Judgment filed by the IRC and joined by Commissioners Mathis, McNulty, and Herrera is granted. The State’s Cross-Motion for Summary Judgment is denied. 
So, ALL of the relief requested by the AIRC was granted. NONE of what Tom Horne requested -- which was to compel Mathis, McNulty and Herrera to respond to his subpoenas and for a ruling that they had violated the Open Meeting Law -- was granted.


By the way, on the issue of Colleen Mathis' vote to hire Joe Kanefield and Ballard Spahr as opposed to Lisa Hauser to be Republican counsel for the IRC, Fink addresses what I believe to be the fulcrum in showing her independence:

When interpreting a constitutional provision, the Court’s “primary purpose is to effectuate the intent of those who framed the provision and, in the case of an amendment, the intent of the electorate that adopted it.”  Heath v. Kiger, 217 Ariz. 492, 495 ¶ 9, 176 P.3d 690, 693 (2008) 
Remember that in EVERY high profile case, since that vote, on election related litigation (Pearce recall and AIRC matters), Hauser has advocated specifically and emphatically AGAINST the intent of the electorate and/or the drafters of the laws in question. Hauser tried to get the Pearce recall stopped on technicalities, will of the voters be damned. And Hauser (along with that other superb legal mind, Sen. Andy Biggs(hot)), of course, claimed that "gross misconduct" is whatever the governor and the state senate wants it to mean.

The Arizona Supreme Court, unequivocally, shot down Hauser's argument then, and Judge Fink shot down that same "logic" on Friday.


* delluser says: So you think is a good thing that they can do whatever they want behind closed doors and not be held accountable. I can't believe how stupid you liberals are just because this is happening to the Republicans. You think everything is fair. Things like this set precedents, in the future this could happened to the Democratic Party; would you think it is fair then?
Delluser, this is NOT happening to Republicans. This is happening to Arizonans. Indeed, litigation like we've observed this year has set precedents. Important precedents that will govern how Independent Redistricting is carried out in Arizona and perhaps other states in the next cycle (2021). While it's a fair bet that the structure of the AIRC will be changed by then (more commissioners, with more Independents and perhaps specifying rural representation), whichever political party dominates Arizona in ten years (if any do) will seek to exploit any remaining vulnerabilities in the Commission.

While I am currently registered as a voter with the Democratic Party, I am not blind to the potential for (not so innocuous) hijinx from either party. Which is the very reason I applaud Judge Fink's ruling. Not because it is a victory for Democrats but because it is a victory for INDEPENDENT redistricting. I stand with the drafters of Prop 106 in that regard. When the tide turns (and it WILL turn), if it goes too far and presents Democratic office holders in Arizona with too much temptation to avoid, I will be in favor of openness and accountability for them too.


** Remember AZSCAM.

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