Bitter Smith case not dead yet?

First, I'll follow up on a previous post (the first of 2016). The Yellow Sheet reported today that Andy Toxin has not yet taken the oath of office as a Corporation Commissioner because he has not yet vacated his other jobs as director of two state agencies.

Before he steps into his new role as commissioner, Tobin has to tie up a few loose ends, chief of which is transitioning out of the two state agencies that he currently manages. Tobin said his immediate priority is to make the transition as smooth as possible. Ducey will have to pick new agency directors (or maybe just one) to head up Dept of Financial Institutions and Dept of Insurance. Tobin said his goal is to complete the transition no later than February 1st.

It also quoted former Residential Utility Consumer Office director Pat Quinn,

While others lamented Bitter Smith’s departure, some suggested it’s best for her and the commission and argued that heightened scrutiny on the regulatory body isn’t a bad thing. Former RUCO chief Pat Quinn hopes that more people will pay attention to what the commission does and also to who’s running for the job. “The commission should get a lot more scrutiny, because they control so much of your life,” he told our reporter. That’s particularly important as the commission faces big policy decisions in the coming months, he said, adding that while the situation now might seem unfortunate, the scrutiny is healthy in the long run. 

The highlighted (in bold) quote above is the YS quote of the day. Reasonably so.

Then tonight, I learned that former Corporation Commissioners Renz Jennings and Bill Mundell, along with former Corp Comm candidate (1996) Barbara Sherman filed an amicus brief with the Arizona Supreme Court asking it to decide the issues of conflict of interest raised in Brnovich's petition to remove Bitter Smith.

...taking this matter up due to its great import is buttressed by the potential for repetition of the issues raised here. Amici Jennings and Mundell, as former Commissioners, understand clearly the imposition that public service on the Commission exerts on the officeholders; given their experience, including facing issues involving A.R.S. Section 40-101. That experience uniquely positions them to ask this Court to proceed to clarify the interpretation of A.R.S. Section 40-101 so that current sitting Commissioners and those who will fill those positions in the future—including the newly appointed Commissioner who will fill the seat vacated in connection with the Attorney General’s Petition—understand the ground rules governing their private affairs. Sitting and future Commissioners deserve to have established clearly by this Court what is legally acceptable and what will be challenged by the Attorney General as a violation of A.R.S. Section 40-101. [...]

As the presence supporting this brief of Amicus Sherman demonstrates, those who seek the office, even if unsuccessful, deserve this Court’s consideration of this matter. It was Amicus Sherman who sought election to the Commission in 1996, only to be defeated by a candidate who thereafter was forced from office. Further clarification of the statute, now that it is before the Court, is appropriate.

Ms. Sherman lost to Jim Irvin in 1996. Irvin was the subject of a Corporation Commission scandal involving Southwest Gas in 2002/2003. He resigned his seat in September 2003. The amicus brief goes on,

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. [...]

The matter is not mooted by the resignation of the subject Commissioner because of the uncertainty presented by the non-binding interpretation of the governing statute contained in the Petition; that uncertainty will continue to be imposed on current and future Commissioners, candidates for the office of Commissioner and the voters of this State in their decisions in all future elections.

In short, the issues raised by the matter are of significant public and statewide concern as expressed in the opening brief of the Attorney General of the State of Arizona, the matter has been fully briefed by the parties prior to the subject Commissioner’s resignation, and, even if mooted by the subject Commissioner’s resignation, involve the interpretation of state statutes that are of continuing import to officers of the state in the continuing administration of their duties to the people of the State of Arizona, as well as to those who would seek to become officers of the state and the voters who may elect them.

For the above reasons, the Amici respectfully request the Court to hear and decide this matter as presented by the parties.

The brief makes a compelling argument. We'll see what the court decides to do with it.