Tuesday, January 18, 2011

Redistricting update: Lawsuit argued, under advisement

Earlier today, the Arizona Supreme Court heard oral arguments in the suit over the nominees for the Arizona Independent Redistricting Commission (AIRC) brought by Russell Pearce and Kirk Adams, President of the Arizona Senate and Speaker of the Arizona House, respectively.

The suit basically focuses on Pearce and Adams' allegation that three of the nominees for the AIRC, Independent Paul Bender and Republicans Steve Sossaman and Mark Schnepf, aren't eligible for the AIRC because of they hold public offices.  Bender has acted as a tribal judge for two Nations in Arizona and Sossaman and Schnepf have been elected to local irrigation district governing boards.

After slightly more than an hour, the Court took the matter under advisement and promised a ruling on the matter shortly (my guess: this week.  That's only a guess, however).

The Court was presided over by Vice Chief Justice Andrew Hurwitz as Chief Justice Rebecca White Berch recused herself because she chaired the meetings of the Arizona Commission on Appellate Court Appointments that produced the list of applicants that Pearce and Adams dislike so much.  Judge Michael Ryan of Maricopa County sat in on the hearing in Berch's place.

It would be beyond my capabilities to write an exhaustive summary of the arguments presented today, but interested readers can find the written briefs here.

A less-than-exhaustive summary:

Peter Gentala, arguing for Pearce and Adams and targeting the nomination of ASU professor Paul Bender, basically argued that Native American tribes in Arizona are part of the state, and tribal offices qualify as public offices in Arizona.  He also argued that irrigation district board members are public officials even though they aren't specified as such under AZ law or in the materials published by the Appellate Court Appointments Commission (targeting the nominations of Schnepf and Sossaman).

The justices asked Gentala about whether irrigation district governing board members have to file the same financial disclosure forms that public officials have to (Gentala didn't know, and I don't either.  I've looked online and couldn't find any with the state or Maricopa County, nor could I find any campaign filings, but that doesn't mean they don't exist).  One justice, W. Scott Bailes, pointed out that tribal lands aren't considered "public."  Just ask anyone who has been caught hiking or camping on one or another reservation. 

Steven Tully, representing the five Republican Congressmen, argued in pretty much the same vein at Gentala.  He argued that Bender has admitted that he's a public official with the tribes and is ineligible for that reason.  Justice Hurwitz reiterated the "tribal v. public" lands point and also pointed out a case where tribal records are NOT public under Arizona's public records law.

Jack Fields, Deputy Yavapai County Attorney, representing Yavapai County Attorney Sheila Polk, questioned the lack of geographical diversity of the nominees (out of 10 R candidates, nine are from Maricopa County).

Mary O'Grady, representing the Arizona Attorney General, in turn representing the Arizona Commission on Appellate Court Appointments, argued that it was too soon to challenge the qualifications of the three, and that it should have been done *after* one (or all three) were actually members of the AIRC (referred to as a "quo warranto" action).

Stanley Feldman, former Chief Justice of the Supreme Court, argued on behalf of Lattie Coor, Paul Johnson, et. al., who weighed in in support of Professor Bender.  He conceded the point that Bender is a public official in a tribe, but that sovereign Indian tribes aren't controlled by Arizona law, nor are tribal officials' appointments/elections governed by Arizona law.  He did *not* agree with O'Grady's argument regarding the qualifications issue.  He stated that waiting until it is time for a "quo warranto" action (after the membership of the AIRC is appointed) isn't wise, saying "[i]t's here, you are going to have to decide it sooner or later."

I truly don't have any idea how the Court will rule on this matter.  I'm not familiar with the dynamic of the Court.  On the west side of Wesley Bolin Plaza (aka - at the legislature), this would be an easy prediction to make - whatever is the worst possible outcome for Arizona, the lege would produce.

The Court, however, has a pretty good reputation for fairness.  They are expected to rule on the legal merits, and not being a lawyer, I can't evaluate those.

The logic here is apparent - the lawsuit is meritless, and Pearce and Adams are throwing Sossaman and Schnepf under the bus to create a smokescreen around their attempt to remove Bender who, while almost universally renowned as a brilliant legal scholar, is also widely regarded as a true liberal.

However, frequently the law has nothing more than a passing relationship with logic.

The video archive of today's arguments can be found here.  Click on the "Oral Arguments" for "ADAMS/PEARCE v. COMMISSION ON APPELLATE COURT APPOINTMENTS".

I do have one question however, one that didn't get brought up during today's hearing -

If Russell Pearce feels so strongly that Native American nations are so much a part of Arizona that their offices constitute public offices in Arizona, why is he a cosponsor of SCR1010, a proposed amendment to the Arizona Constitution to restrict the decisions of the state's courts?

From the proposal -
Just sayin'...

1 comment:

Steve Muratore said...

No surprise that he wants it both ways... depending on what's convenient for him in any given situation.