AZ Supremes decline to rule on Bitter Smith's conflicts of interest

Pursuant to today's conference of the five justices of the Arizona Supreme Court,

CV-15-0356-SA (A) STATE ex rel BRNOVICH v SUSAN BITTER SMITH

ORDERED: Conditional Motion to Withdraw Petition = DENIED as Moot.

FURTHER ORDERED: Application for Permission to File Brief of Amici Curiae (Amici Red Rock Telecommunications) = DENIED.

FURTHER ORDERED: The Court declines to accept jurisdiction of the Petition

So, the first order was to deny Brnovich's motion to withdraw the petition. Because Bitter Smith has now vacated the seat in the Corp Comm, the original petition is moot anyway.

The second order, to deny permission for Red Rock Telecommunications LLC to submit an amicus brief, was (according to Supreme Court spokeswoman Heather Murphy) due to it being filed too late.

Red Rock Telecommunications apparently provides VoIP (voice over internet protocol) services in Arizona and other states. Red Rock wanted to ask the court to consider and rule on the issues raised in Brnovich's petition. Of the most urgent concern to this prospective amici is an assertion in the petition that VoIP is at all regulated by the Corporation Commission.

The AG's office responded to Red Rock's request first by indicating it had no objection to allowing the filing, then saying,

Amici’s desire to avoid a court ruling that would inadvertently impose a regulatory requirement where none now exists (see, e.g., Proposed Brief Amici Curiae at 5) is not a reason for accepting jurisdiction in a moot case. If anything, it supports not accepting jurisdiction.

Red Rock apparently is very concerned about potential ACC regulation. However, the AG response also makes distinctions about regulation of VoIP.

The Petition therefore does not attempt to set forth the outer bounds of the subject matter of the Commission’s regulation, and there is no reason to decide those bounds in this case, which relates to the application of a conflict-of-interest provision.

For the foregoing reasons, the issues raised in the proposed Amici Brief do not support accepting jurisdiction, and Petitioner has correctly addressed the Commission’s regulation of VoIP as it relates to application of § 40-101 to Ms. Bitter Smith.

The third order, in the notice from the court, is the bottom line. The court is not going to take the time to parse out what may or may not constitute conflicts of interest in hypothetical situations. As Jennings, Mundell and Sherman point out in their brief,

Moreover, given the likelihood of repetition, a binding decision by this Court will provide current and future Commissioners, candidates for Commissioner, the voters of the State of Arizona and the Attorney General and all other law enforcement officers in similar positions, answers to the questions posed by the Petition and will resolve significant uncertainty and avoid repetition of this matter. The ability for current and future officers to conduct themselves in accordance with their legal and ethical duties under state law, and the determination in the future by the Attorney General and like officers to make the legally significant, and contra-democratic decision to seek removal of a duly elected officer, depends on those answers.

As noble and proper as that argument sounds, we know that politicians, elected officials and crony capitalists in America these days do not always respect legal boundaries. Therefore, any hypothetical ruling by the court simply moves the goalposts and either expands or contracts the field of play. A new court ruling in this matter would not and cannot change human nature.

One friend pointed out that if the current legal standard on conflict-of-interest (40-101) is outdated, wouldn't the proper remedy be legislation rather than litigation? That is, despite the corrupt nature of the GOP's heavy-handed control of the legislature.