Update: Open Meeting law case against the AIRC appears to fall apart

Posted by AzBlueMeanie:

"It is a tale Told by an idiot, full of sound and fury, Signifying nothing." - Macbeth Act 5, scene 5

Tom "banned for life by the SEC" Horne's political witch hunt against the Arizona Independent Redistricitng Commission appeared to fall apart in court on Wednesday.

Attorneys leading an investigation into whether Arizona's redistricting commission violated the open meeting law in hiring a mapping consultant withdrew one of their top claims during argument on Wednesday. Key claim struck in bid for AZ redistricting probe:

The withdrawn claim had questioned whether the commission's deliberations at a June meeting were a sham because three members allegedly had talks that produced a decision prior to action in public.

Colleen Connor, a lawyer for Maricopa County, withdrew the claim made earlier by Attorney General Tom Horne's office because she said it was premature and the investigation hasn't moved forward.

Attorneys leading the investigation added that the claim could be raised again at a later date.

* * *

With the withdrawal of the key claim on Wednesday, attorneys leading the investigation were left to pursue claims that include questions of whether commissioners are exempt from open meeting law and immune from investigations into alleged violations of law.

And on these issues, Superior Court Judge Dean Fink played the role of "Obvious Man" from the Non Sequitur cartoon strip. Attorney wants redistricting commission to stop 'stonewalling' investigation – East Valley Tribune:

Jean-Jacques Cabou, an attorney representing the commission, said that law does not apply to the commission. And that means prosecutors cannot use their powers to demand that anyone testify.

Cabou acknowledged that there is a requirement in the constitutional provision which established the commission to conduct all business in public.

He said, though, if there were a violation of that requirement – and he is not conceding there was – the only remedy is for individual citizens to ask a court to intercede. Prosecutors, he argued, have no standing to demand testimony first without a court order.

Fink said, though, the issue is not that simple. He said there is a question of whether what was done is, in fact, illegal.

* * *

Fink said it's one thing if three commissioners consulted together, even if that occurred in a conference call. But he said that's not what happened here.

In fact, he pointed out, the process of lining up votes occurs all the time at the Legislature.

"Isn't the job of a whip just to make sure you're counting the number of votes and that you have the votes lined up before you take something to vote?" he asked.

Deputy County Attorney Colleen Connor conceded the point. But she said the Legislature has a "special exemption" from the Open Meeting law and is allowed to create its own rules.

But Andy Gordon, who represents commissioner Linda McNulty, said there is case law which says the commission is the functional equivalent of the Legislature, at least when it comes to matters within its own purview. Anyway, he said, there is nothing in the law, or even in court rulings, which spells out that "serial communications" among members of a public body are illegal.

One of the charges the governor leveled against Mathis was violating the Open Meeting Law. If the commission is not subject to that law – or that law does not apply to what Mathis is accused of doing – that undermines the legal justification for Brewer's action. Moreover:

Fink responded that the fact Brewer felt it appropriate to go ahead with the firing, and the Senate giving its consent, seems to suggest that Montgomery's investigation is unnecessary.

But the judge said the Supreme Court fight raises another question.

He said the "ultimate penalty" for violating the Open Meeting Law is removal from office. The judge said if the Supreme Court upholds Mathis' ouster – and she is the main target of Montgomery's investigation – that may make the whole court fight legally moot.

On the issue of legislative privilege:

In deciding whether to let Montgomery proceed with his investigation, Fink needs to address another question: Do commissioners, like lawmakers, have a constitutional privilege to not have their deliberations examined by outsiders.

"What they want to know about are conversations between commissioners," Gordon told Fink. "And those conversations are absolutely entitled to legislative privilege."

Fink said that is true – but only when the body is engaged in its core function.

That would preclude Montgomery from inquiring about how certain lines were drawn on maps. In this case, the judge noted, the discussions were about hiring a consultant.

Gordon said, though, this was not just any consultant but the firm that would actually help the commission in drawing the maps which is the central role of the commission. That, he argued, gave the decision on who to hire the same protection as any discussions about the maps themselves.

Based upon the reporting in this case, I would have to say it's not looking good for Tom "banned for life by the SEC" Horne, and by extension, it's not looking good for the Red Queen, Governor Jan Brewer.

Attorneys for the State have withdrawn their claim regarding the hiring of the mapping company as "premature," i.e., the alleged open meeting law violation cited by Brewer as justification for firing Commissioner Mathis. On the issue of AIRC deliberations about how certain lines were drawn, Brewer's other justification for firing Commissioner Mathis, Judge Fink indicated that legislative privilege applies to Commission deliberations. Which leaves no legal justification for Brewer's action.