Supreme Court to the Red Queen: No constitutional basis for removal of Colleen Mathis

Posted by AzBlueMeanie:

I am going to take a moment to say "I told you so!" The Red Queen makes her move:

Judge Ryan is making the same legal points I have made here: the determination of a violation of the Open Meeting law is exclusively within the jurisdiction of the judiciary, the governor and the legislature have no jurisdiction to determine a violation under the statute. That matter is presently before the Superior Court.

The mapping criteria of Prop. 106 as applied to "draft" maps is premature. The sufficiency of the final maps can be challenged in court, and will be.

But the AIRC is a quasi-legislative body that enjoys legislative privilege, a right established by the governor's court jester Lisa Hauser when she previously represented the AIRC. The mapping process is not subject to second guessing or interference from the legislature or the governor.

In other words, the conduct complained of is not grounds for removal.

Justice Hurwitz writing for the Arizona Supreme Court essentially says the same thing. Steve Muratore has the Court's order at The Arizona Eagletarian: Redistricting — Supreme clarification:

[T]he Arizona Supreme Court issued an order in response to filings earlier this week from Gov. Brewer and House Speaker Andy Tobin. A brief summary follows.

The Court has received Respondents’ Joint Motion to Reconsider Order of November 17, 2011, Respondents’ Joint Motion for Expedited Consideration, Respondents’ Joint Motion to Stay Order Reinstating Petitioner-Intervenor Mathis Pending Reconsideration, and the Motion to Intervene of Andrew M. Tobin, Speaker of the Arizona House of Representatives and Joinder in the Governor and Senate’s Motion for Reconsideration. After consideration, the Court decides as follows: 

IT IS ORDERED granting Respondents’ Joint Motion for Expedited Consideration.

IT IS FURTHER ORDERED denying Respondents’ Joint Motion to Stay Order Reinstating Petitioner-Intervenor Mathis Pending Reconsideration. 

IT IS FURTHER ORDERED denying Motion to Intervene of Andrew M. Tobin, Speaker of the Arizona House of Representatives and Joinder in the Governor and Senate’s Motion for Reconsideration. The Court will treat the Motion as an amicus brief.

IT IS FURTHER ORDERED denying Respondents’ Joint Motion to Reconsider Order of November 17, 2011, except insofar as the motion seeks clarification of the Order. As the Order notes, the Court accepted jurisdiction of the petition for special action, having concluded that it has jurisdiction under Article 6, Section 5(1) of the Arizona Constitution. The Court further concluded that the issues presented are not political questions committed by the Constitution to the unreviewable discretion of the other branches of government.

IT IS FURTHER ORDERED clarifying the Court’s November 17, 2011 Order as it concerns the letter of November 1, 2011, from the Acting Governor to Colleen Mathis. The Order states that the November 1, 2011 letter does not demonstrate “substantial neglect of duty, gross misconduct in office, or inability to discharge the duties of office” as required under Article 4, Part 2, Section 1(10) of the Arizona Constitution. Respondents seek clarification whether the Court’s conclusion was based on the format of the November 1, 2011 letter, which stated that the Governor had determined that Mathis had “failed to conduct the Arizona Independent Redistricting Commission’s business in meetings open to the public, and failed to adjust the grid map as necessary to accommodate all of the goals set forth in Arizona Constitution Art. 4, Pt. 2, § 1(14).”

The Governor’s November 1, 2011 letter constitutes her findings of grounds for the removal of Mathis. The Court’s conclusion that the letter does not demonstrate “substantial neglect of duty, gross misconduct in office, or inability to discharge the duties of office” is based on the letter’s substance, not its format. The letter does not, as a matter of law, identify conduct that provides a constitutional basis for removal. One ground identified in the Governor’s letter is a failure to conduct the commission’s business in meetings open to the public. The Constitution directs that “[w]here 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.” Ariz. Const., Art. IV, Pt. 2, § 1(12). The statutory Open Meeting Law defines “meeting” in terms of a gathering of a quorum, A.R.S. § 38-431(4), and it directs that all meetings of public bodies shall be public meetings and that legal action of Supreme Court Case No. CV-11-0313-SA public bodies shall occur in public meetings. Id. § 38-431.01(A). A failure to conduct the business of the commission in meetings open to the public must at least involve violations of these laws for it to constitute “substantial neglect of duty” or “gross misconduct.” (We do not decide whether the constitutional provision preempts any statutory Open Meeting Law requirements, an issue that is being litigated in another forum.) There is, however, no allegation of any non-public meeting of a quorum of the commission in the Governor’s October 26, 2011 letter or in the responses thereto. Nor does the Governor’s November 1, 2011 letter find that a non-public meeting of a quorum of the commission occurred.

With regard to preparing maps, the commissioners perform legislative tasks in which they must “balance competing concerns” and “exercise discretion in choosing among potential adjustments to the grid map,” Ariz. Minority Coalition for Fair Redistricting v. Arizona Indep. Redistricting Comm’n, 220 Ariz. 587, 597 ¶ 28, 208 P.3d 676, 686 (2009), and the commission’s adoption of final maps is subject to judicial review for compliance with the Constitution’s procedural andsubstantive requirements. Id. at 596 ¶ 24, 208 P.3d at 685. The Governor’s disagreement with commissioners over whether they have properly considered constitutional criteria for adjusting the grid map before they have completed final maps is not, as a matter of law, a constitutional basis for removal.

As noted in the Order, the Court in due course will issue an opinion more fully detailing its reasoning in this matter.

Got that? The two grounds cited by the Red Queen for removal of Colleen Mathis, (1) a violation of the Open Meeting law and (2) her subjective view that the AIRC did not comply with the mapping criteria of Prop. 106, do not AS A MATTER OF LAW state grounds for removal for “substantial neglect of duty, gross misconduct in office, or inability to discharge the duties of office.” In other words, the Red Queen and the Senate Star Chamber engaged in a politically motivated witch hunt without any legal justification.

Tea-Publicans and their sycophants in the media have been trying to convince the public that this was just a procedural error and that they only need to follow the proper procedure to remove Mathis. While the lack of procedural due process afforded to Colleen Mathis will certainly be part of the Court's opinion, the Court has clarified that its decision is based upon substantive law – there was no constitutional basis for removal.

So how are the corporate media villagers who carry water for the GOP reporting this today? The Red Queen's sycophant Howard Fischer at Capitol Media Services reports Court blocks Brewer from trying again to fire redistricting chair – East Valley Tribune:

The Arizona Supreme Court late Wednesday effectively blocked Gov. Jan Brewer from once again trying to fire the chairwoman of the Independent Redistricting Commission, at least not for the reasons the governor cited the first time around.

In a special order, the justices said Brewer provided no evidence that there were three or more members of the five-member commission meeting together at the same time. Justice Andrew Hurwitz, explaining the order, said that means there was no violation of either the state's Open Meeting Law or a separate constitutional provision requiring commission meetings be open, one of the two grounds that the governor cited in ousting Colleen Mathis.

Hurwitz also said Brewer was on no firmer ground in saying that Mathis violated constitutional requirements in the way she led the commission to craft maps for the state's nine congressional districts. Brewer charged that the panel paid too much attention to creating politically competitive districts while ignoring a requirement to keep "communities of interest'' together.

"The commissioners perform legislative tasks in which they must balance competing concerns and exercising discretion'' in adjusting the maps, Hurwitz wrote.

Anyway, he pointed out, the maps that the governor contends are illegal are just drafts.

* * *

"The governor's disagreement with commissioners over whether they have properly considered constitutional criteria for adjusting the (initial) grid map before they have completed final maps is not, as a matter of law, a constitutional basis for removal,'' Hurwitz wrote.

In the version of this report which appears in the Arizona Daily Star, Brewer rebuffed again in map quarrel, Fischer adds "Brewer will huddle with her lawyers to see if there is any path Brewer can take to oust Mathis that the justices will find legal, her press aide Matthew Benson said."

Media villager idiot! The Court has made it abundantly clear that you have no substantive legal grounds for removal and is telling you to cease and desist. Game over!

The Arizona Republic reports State's high court rebuffs Brewer's request:

Arizona Gov. Jan Brewer failed to provide a constitutional reason for removing the chairwoman of the Independent Redistricting Commission, the state Supreme Court said Wednesday.

Late Wednesday, the court did just that, saying the governor had not been able to "identify conduct that provides a constitutional basis for (Mathis') removal."

* * *

The order also punched holes in the hopes of some GOP lawmakers, who believed the governor's letter simply needed to be written better and the removal would stick.

* * *

House Speaker Andy Tobin, R-Paulden, said Brewer should again oust Mathis, calling the Supreme Court's ruling "pathetic." He also said he would support a special session to either repeal or reform the voter-approved initiative that created the five-member commission, which is charged with drawing new legislative and congressional boundaries for the next decade.

Brewer has been noncommittal on a session, which would have to happen by Wednesday to get on the Feb. 28 ballot, as many Republican lawmakers want. Nor was the governor certain immediately Wednesday what, if anything, she would do next.

"The governor and her legal team will be studying this decision," Benson said.

* * *

Jean-Jacques Cabou, an attorney for the redistricting commission, said the high court made it clear there are constitutional limits on the governor's power.

"On the eve of Thanksgiving, I think every Arizonan should be thankful for that," Cabou said.

Oddly, the Arizona Capitol Times does not feature a report on the court's order but rather Senate Republicans say Brewer broke commitment on IRC ballot referral – Arizona Capitol Times (subscription required):

A top Senate Republican staffer says Gov. Jan Brewer broke a commitment that she would call lawmakers back to the Capitol for another special session so they could ask voters to end the Independent Redistricting Commission and put redistricting back in the hands of the Legislature.

Senate Majority Chief of Staff Wendy Baldo said Brewer made the commitment on Oct. 31, the day before the governor called a special session to remove Colleen Mathis as chairwoman of the Arizona Independent Redistricting Commission in order to secure the 20 Senate votes needed for her removal.

Now, Baldo said, the governor’s aides are telling legislative leaders that Brewer wants to see the Arizona Supreme Court’s opinion on its reinstatement of Mathis before moving forward with another special session.

Several Republican senators backed Baldo’s version, but the Governor’s Office and the top House Republican say that’s not what happened.

Brewer spokesman Matthew Benson “flatly” denied the accusation.

“The governor pledged to keep an open mind about the potential of a special session on Proposition 106 (the ballot measure that created the IRC), but at no time did she commit to carrying out a repeal,” Benson said.

And House Speaker Andy Tobin, one of the meeting’s participants, said the governor said she would consider asking lawmakers to call a special election for a repeal, but never pledged she would do so in exchange for the Senate supporting her removal of Mathis.

“The governor did not commit to a (ballot measure). She was open to it, but she did not commit,” Tobin said.

* * *

Sen. Frank Antenori, R-Tucson, said he wouldn’t have voted for Mathis’ removal without a commitment from Brewer to reconvene the Legislature to put Prop. 106 back on the ballot, and added that he believes one or two other senators might have withheld their support as well. During the lead-up to the Nov. 1 special session that resulted in Mathis’ ouster, Antenori was agitating for a ballot referral, saying it was too late to remove Mathis.

“I was promised by leadership at the time and several other folks that were in the room when the governor made the commitment that she was going to do it,” Antenori said. “The way it was construed to me by Russell was that he told her he doesn’t have the votes unless she does the special session.”

Sen. Michele Reagan said Pearce told the caucus that Brewer had made a commitment on a special session for the Prop. 106 repeal, and that she believes that was the deciding factor in convincing a couple of senators to remove the chairwoman.

“There were a couple folks (for whom) that (pledge) was part of what they needed to see happen before they could commit,” said Reagan, R-Scottsdale. “It was common knowledge that that was the deal that was made.”

Sen. Sylvia Allen said Pearce told her that Brewer had pledged to bring lawmakers back to the Capitol for the repeal, and she was upset that the governor did not appear to be following through on it. “That’s what we were told, that she had made that commitment,” said Allen, R-Snowflake.

Sen. Lori Klein, R-Anthem, also said Pearce told her that he had a commitment from the governor, though she said she understood why Brewer hadn’t yet called a special session. “Nobody wants to pull the trigger until we know what we’re doing and what we can do to remedy this problem,” Klein said.

Now that the Supreme Court has made it clear there is no constitutional basis for removal of Colleen Mathis, this Tea-Publican attempt to subvert the will of Arizona's voters by referring Prop. 106 to the ballot at the Republican Presidential Preference Primary election, essentially rigging the vote for repeal, should also be abandoned. Tea-Publicans have abused their power enough.

Every one of these Tea-Publican tyrants need to be kicked out of office in 2012, and the Red Queen recalled. Call to Action: Recall the Red Queen!