Paul Bender: Dismissal of Commissioner Mathis an abuse of power

Posted by AzBlueMeanie:

Paul Bender is dean emeritus and a professor at Arizona State University College of Law. He pens a guest opinion in the Arizona Republic today. Bender: Ouster of panel chief was abuse of power (excerpts):

Today, the Arizona Supreme Court will hear oral arguments in a case challenging Gov. Jan Brewer's recent removal of Colleen Mathis, chairwoman of Arizona's Independent Redistricting Commission. The court's decision will have an important impact on Arizona's political system.

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In 2002… Arizona voters took matters into their own hands. They amended the Arizona Constitution to take redistricting authority away from the Arizona Legislature and give it to an Independent Redistricting Commission composed of citizen volunteers.

The amendment gave the Legislature a very limited role, and the governor no role whatsoever, in the administration of the new redistricting system. The four major party leaders in the Legislature each choose a redistricting commissioner from a list, put together by the commission on appellate-court appointments, of registered Democrats, Republicans and independents. Those four commissioners then select a chair from the independents on the list.

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The primary purpose of the 2000 amendment was unquestionably to preclude the Legislature, the governor, and partisan politics generally, from making or influencing redistricting decisions. What then is the basis for the governor's and the Senate's heavy-handed intrusion into the process?

They purport to rely on a provision of the amendment providing that a commission member may be removed by the governor, with the concurrence of two-thirds of the Senate, for "substantial neglect of duty, gross misconduct in office, or inability to discharge the duties of office."

Those are, on their face, quite strict limits on the governor's removal power. The question is whether the Supreme Court will enforce these strict limits or permit the governor and Senate to force members of the commission to choose between complying with their wishes and being removed.

The question, I think, answers itself. The commission cannot possibly be free to redistrict independently, as the voters intended, if the governor and the Senate can remove commissioners simply because they have enough votes to do so.

Humphrey's Executor vs. U.S., the leading case on this subject, is directly on point. It involved a sitting member of the Federal Trade Commission who President Franklin Roosevelt believed was incorrectly interpreting the law. The FTC Act provided, in language almost identical to Arizona's removal provision, that "any commissioner may be removed by the president for inefficiency, neglect of duty, or malfeasance in office." Roosevelt asked the commissioner to resign. When he refused, the president removed him.

The U.S. Supreme Court unanimously and emphatically held the removal illegal.The president's power to remove a commissioner, the court said, was legally "limited by the specific causes enumerated in" the FTC Act.

The FTC, like Arizona's redistricting commission, was designed to be independent. If the court didn't intervene, that independence would evaporate.

The current situation in Arizona presents an even stronger reason for judicial review. The independence of our redistricting commission is guaranteed by our Constitution, not merely by a statute. FTC commissioners, moreover, are at least initially appointed by the president, while Arizona's governor has nothing whatever to do with selecting redistricting commission members.

The Arizona Constitution, like the U.S. Constitution, does provide a means by which raw political power can be used to remove government officials: impeachment.

Courts traditionally do not review the judgments of properly constituted legislative impeachment courts, which include formal charges and, in Arizona, a public trial with the chief justice of the state Supreme Court presiding.

Nothing resembling that kind of careful and fair procedure was a predicate to the removal of Chairwoman Mathis. The governor and the Senate thus want the Arizona Supreme Court to permit them to exercise the awesome power of impeachment without affording the procedural safeguards that impeachment requires. The court should not allow them to do that. The quality of representative democracy in Arizona during the next 10 years depends on it.