Adams v. the Comm'n On Appellate Court Appointments

• Decision Date: 08 July 2011
• Docket Number: No. CV–10–0405–SA.,CV–10–0405–SA.
• Citation: 227 Ariz. 128,254 P.3d 367
• Parties: Kirk ADAMS, Speaker of the Arizona House of Representatives, in his official capacity; and Russell Pearce, President of the Arizona Senate, in his official capacity, Petitioners,v.The COMMISSION ON APPELLATE COURT APPOINTMENTS; Rebecca White Berch, officially in her capacity as Chair of the Commission on Appellate Court Appointments; Suzanne M. Ballard; Doug Cole; Carey Dobson; Robert M. Gallo; John A. Leavitt; Linda Martin; Dewey D. Schade; Jane C. Strain; John Thomas Taylor, III; Charie Wallace; William J. Ekstrom, Jr.; Jill Harrison; Michael Rusing; and Ted A. Schmidt, officially in their capacities as members of the Commission on Appellate Court Appointments, Respondents.
• Court: Arizona Supreme Court

227 Ariz. 128

254 P.3d 367

Kirk ADAMS, Speaker of the Arizona House of Representatives, in his official capacity; and Russell Pearce, President of the Arizona Senate, in his official capacity, Petitioners,

v.The COMMISSION ON APPELLATE COURT APPOINTMENTS; Rebecca White Berch, officially in her capacity as Chair of the Commission on Appellate Court Appointments; Suzanne M. Ballard; Doug Cole; Carey Dobson; Robert M. Gallo; John A. Leavitt; Linda Martin; Dewey D. Schade; Jane C. Strain; John Thomas Taylor, III; Charie Wallace; William J. Ekstrom, Jr.; Jill Harrison; Michael Rusing; and Ted A. Schmidt, officially in their capacities as members of the Commission on Appellate Court Appointments, Respondents.

No. CV–10–0405–SA.

Supreme Court of Arizona, En Banc.

July 8, 2011.

Arizona House of Representatives by Peter A. Gentala and Arizona State Senate by Gregrey G. Jernigan, Phoenix, Attorneys for Kirk D. Adams and Russell K. Pearce.Thomas C. Horne, Arizona Attorney General by Mary R. O'Grady, Solicitor General, Mark D. Wilson, Assistant Attorney General, Rex C. Nowlan, Assistant Attorney General, Phoenix, Attorneys for Commission on Appellate Court Appointments, Rebecca White Berch, Suzanne M. Ballard, Doug Cole, Carey Dobson, Robert M. Gallo, John A. Leavitt, Linda Martin, Dewey D. Schade, Jane C. Strain, John Thomas Taylor, III, Charie Wallace, William J. Ekstrom, Jr, Jill Harrison, Michael Rusing, and Ted A. Schmidt.Haralson Miller Pitt Feldman & McAnally PLC by Stanley G. Feldman, Tucson, and Perkins Coie LLP by Paul F. Eckstein, Colin P. Ahler, Amy C. Chang, Phoenix, Attorneys for Amici Curiae Lattie Coor, Paul Johnson, Valley Citizens League, Phoenix and Arizona Latino Research Enterprise.Sheila Sullivan Polk, Yavapai County Attorney by Jack H. Fields, Deputy County Attorney, Prescott, Attorneys for Amicus Curiae Yavapai County Attorney.Gordon & Rees, LLP by Stephen W. Tully, Phoenix, Attorneys for Amici Curiae Jeff Flake, Trent Franks, Benjamin Quayle, Paul Gosar, and David Schweikert.

OPINION

BALES, Justice.

¶ 1 This special action challenges the qualifications of three nominees to the Arizona Independent Redistricting Commission. On January 19, 2011, we issued an order accepting jurisdiction and granting relief in part, stating that a written opinion would follow. This is that opinion.

I.

¶ 2 In 2000, the voters approved Proposition 106, which amended the Arizona Constitution to require that a five-member Independent Redistricting Commission (“IRC”) draw boundaries for congressional and state legislative districts after every decennial census. The IRC must be constituted by February 28 of each year ending in one. Ariz. Const. art. 4, pt. 2, § 1(3). No more than two Commission members may belong to the same political party. Id. In addition, during the three years preceding appointment,

members shall not have been appointed to, elected to, or a candidate for any other public office, including precinct committeeman or committeewoman but not including school board member or officer, and shall not have served as an officer of a political party, or served as a registered paid lobbyist or as an officer of a candidate's campaign committee.

Id.

¶ 3 The Arizona Constitution directs that by January 8 of years ending in one, the Commission on Appellate Court Appointments (“Appointment Commission”) shall nominate twenty-five persons to serve on the IRC, “with ten nominees from each of the two largest political parties in Arizona ... and five who are not registered with either of the two largest political parties in Arizona.” Id. §§ 1(4), (5).

¶ 4 After the Appointment Commission has created its list of twenty-five nominees, the highest ranking officer of the Arizona House of Representatives appoints one person from the list to serve on the IRC. Id. § 1(6). Appointments of the next three commissioners are then made from the list successively by the House minority leader, the highest ranking officer of the Arizona Senate, and the Senate minority leader. Id. The four commissioners chosen by the legislative leaders select the fifth, who cannot be a member of any party already represented on the IRC. Id. § 1(8).

¶ 5 In September 2010, the Appointment Commission announced that it was accepting applications from persons interested in serving on the IRC. Seventy-nine people applied, including Mark Schnepf, Stephen Sossaman, and Paul Bender. Schnepf and Sossaman, both Republicans, reported on their applications that they serve as directors for irrigation districts. Schnepf is on the board for the New Magma Irrigation District; Sossaman is on the board for the Queen Creek Irrigation District. Bender, an independent, stated on his application that he serves as “Chief Judge of two Arizona tribal courts.” Bender, a law professor at Arizona State University, serves as the Chief Justice of the Supreme Court of the Fort McDowell Yavapai Nation and the Chief Judge of the Court of Appeals of the San Carlos Apache Tribe.

¶ 6 The Appointment Commission met on December 8, 2010, to take public comment, obtain legal advice on eligibility questions, interview forty applicants, and select nominees. The committee selected twenty-five nominees, including Bender, Schnepf, and Sossaman. Two days later, Kirk Adams, Speaker of the House of Representatives, and Russell Pearce, President of the Senate, asked the Appointment Commission to reconsider, arguing that the three contested nominees were ineligible because they held public office. The two legislators notified Bender, Schnepf, and Sossaman that they would not consider appointing them and urged them to withdraw. Bender declined; Schnepf and Sossaman sent withdrawal letters to the Appointment Commission.

¶ 7 On December 29, 2010, the Appointment Commission declined to change its selections and transmitted its list of twenty-five nominees to Adams. The next day, Adams and Pearce filed a petition for special action with this Court, arguing that the three challenged nominees are ineligible because they hold other public office and that Schnepf and Sossaman are also ineligible because they have withdrawn their applications.

II.

¶ 8 “Our decision to accept jurisdiction of a special action is highly discretionary.” League of Ariz. Cities & Towns v. Martin, 219 Ariz. 556, 558 ¶ 4, 201 P.3d 517, 519 (2009). In invoking this Court's jurisdiction, Petitioners allege that the Appointment Commission has “failed to ... perform a duty required by law as to which [it had] no discretion,” Ariz. R.P. Spec. Act. 3(a), because it has not established a pool of twenty-five “persons who are willing to serve on and are qualified for appointment” to the IRC. See Ariz. Const. art. 4, pt. 2, § 1(5).

¶ 9 We agree that Petitioners, as the persons entitled to make the first and third appointments to the IRC, have standing to challenge the legality of the Appointment Commission's list of nominees. See Brewer v. Burns, 222 Ariz. 234, 237–38 ¶¶ 11–14, 213 P.3d 671, 674–75 (2009). We exercise our discretion to accept jurisdiction because “this case involves a dispute at the highest levels of state government” requiring “a prompt determination.” Rios v. Symington, 172 Ariz. 3, 5, 833 P.2d 20, 22 (1992).

III.

A.

¶ 10 Arizona's constitution states that “[w]ithin the three years previous to appointment,” members of the IRC “shall not have been appointed to, elected to, or a candidate for any other public office, including precinct committeeman or committeewoman but not including school board member or officer.” Ariz. Const. art. 4, pt. 2, § 1(3). Commissioners are also subject to a disqualification provision: “A commissioner, during the commissioner's terms of office and for three years thereafter, shall be ineligible for Arizona public office or for registration as a paid lobbyist.” Id. § 1(13).

¶ 11 The term “public office” as used in § 1(3) is not defined in the constitution. The sentence in which the term appears, however, provides guidance as to its meaning. Section 1(3) refers to “other public office” in contrast to service as an IRC commissioner, a state office, and “public office” therefore includes other state offices. In addition, § 1(3) excludes school board members. Because school districts are political subdivisions of the state, A.R.S. § 15–101(21) (2011), this exclusion implies that public offices of other political subdivisions (e.g., counties or municipalities) are encompassed by the term “public office” in § 1(3). Cf. State Consol. Publ'g Co. v. Hill, 39 Ariz. 21, 28–32, 3 P.2d 525, 528–29 (1931) (holding that municipal officers are subject to prohibition in Article 4, Part 2, Section 17 on changes in compensation of “public officers” during term of office), modified on other grounds, 39 Ariz. 163, 4 P.2d 668 (1931).

¶ 12 Thus, “public office” as used in § 1(3) includes offices of the state or any of its political subdivisions, excluding school board members or officers. Cf. A.R.S. § 38–101(1) (defining “office” to mean “any office ... of the state, or any political subdivision thereof, the salary or compensation ... of which is paid from a fund raised by taxation or by public revenue”).

B.

¶ 13 If an irrigation district director holds an “office” of a political subdivision of the state, Schnepf and Sossaman are ineligible to serve as commissioners.

¶ 14 Irrigation districts “derive their powers from the constitution and statutes of Arizona.” Hohokam Irr. & Drainage Dist. v. Ariz. Pub. Serv. Co., 204 Ariz. 394, 397 ¶ 6, 64 P.3d 836, 839 (2003). Article 13, section 7 of the Arizona Constitution states that irrigation districts are “political subdivisions of the state, and vested with all the rights, privileges and benefits, and entitled to the immunities and exemptions granted municipalities and political subdivisions under this constitution.” See also A.R.S. § 48–2901 (“All irrigation districts organized under the laws of this state are declared to be municipal corporations for all purposes.”)...