Arizona Indep. Redistricting Comm'n v. Brewer, CV–11–0313–SA.

• Decision Date: 20 April 2012
• Docket Number: No. CV–11–0313–SA.,CV–11–0313–SA.
• Citation: 229 Ariz. 347,275 P.3d 1267,632 Ariz. Adv. Rep. 32
• Parties: ARIZONA INDEPENDENT REDISTRICTING COMMISSION, an Independent Constitutional Body, Petitioner,Colleen Coyle Mathis, Intervenor, v. Janice K. BREWER, in her official capacity as the Governor of the State of Arizona; Arizona State Senate; Russell Pearce, in his official capacity as Senate President, Respondents.
• Court: Arizona Supreme Court

229 Ariz. 347

275 P.3d 1267

632 Ariz. Adv. Rep. 32

ARIZONA INDEPENDENT REDISTRICTING COMMISSION, an Independent Constitutional Body, Petitioner,Colleen Coyle Mathis, Intervenor,

v.Janice K. BREWER, in her official capacity as the Governor of the State of Arizona; Arizona State Senate; Russell Pearce, in his official capacity as Senate President, Respondents.

No. CV–11–0313–SA.

Supreme Court of Arizona.

April 20, 2012.

Osborn Maledon PA by Mary R. O'Grady, Kristin L. Windtberg, Grace E. Campbell, Jean–Jacques Cabou, Joseph N. Roth, Phoenix, Attorneys for Arizona Independent Redistricting Commission.

Jones Skelton & Hochuli PLC by A. Melvin McDonald, Jr., Lori L. Voepel, Jonathan P. Barnes, Phoenix, Attorneys for Arizona State Senate and Russell K. Pearce.

Gammage & Burnham PLLC by Lisa T. Hauser, Christopher Hering, Cameron C. Artigue, and Office of the Governor by Joseph Sciarrotta, Jr., Christina Estes–Werther, Phoenix, Attorneys for Governor Janice K. Brewer.Law Offices of Thomas A. Zlaket PLLC by Thomas A. Zlaket, Tucson, Attorney for Colleen Coyle Mathis.Coppersmith Schermer & Brockelman PLC by Andrew S. Gordon, Roopali Hardin Desai, Phoenix, Attorneys for Amicus Curiae Linda C. McNulty.Tim Nelson, PLLC by Timothy A. Nelson, Phoenix, Attorney for Amicus Curiae Jose Herrera.Arizona Center for Law in the Public Interest by Timothy M. Hogan Joy E. Herr–Cardillo, Phoenix, Attorneys for Amici Curiae Ann Eschinger, Dennis Michael Burke, and Bart Turner.Navajo Nation, Department of Justice, Window Rock by Dana L. Bobroff, Michelle Begay, and Sacks Tierney PA by Judith M. Dworkin, Patricia Ferguson–Bohnee, Scottsdale, Attorneys for Amicus Curiae Navajo Nation.Arizona House Of Representatives by Peter A. Gentala, Phoenix, Attorney for Amici Curiae Andrew M. Tobin, Alan L. Krieger, Marlin Kuykendall, and John Moore.Perkins Coie LLP by Paul F. Eckstein, Amelia M. Gerlicher, Kirstin T. Eidenbach, Phoenix, Attorneys for Amici Curiae Common Cause, Susan Gerard, Lucia Howard, Paul Johnson, and Roberta L. Voss.Peñalosa & Associates by Jose L. Peñalosa, Jr., Phoenix, Attorney for Amici Curiae Barbara L. Klein and Ken Clark.Cantelme & Brown PLC by David J. Cantelme, Phoenix, Attorney for Amicus Curiae Speaker Andrew M. Tobin.PELANDER, Justice.

¶ 1 This special action challenges the Governor's removal of Chairperson Colleen Mathis from the Arizona Independent Redistricting Commission (“IRC”). On November 17, 2011, we issued an order, clarified on November 23, accepting jurisdiction and granting relief with a written opinion to follow. This is that opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 The IRC consists of five citizen volunteers constitutionally charged with drawing Arizona's congressional and state legislative districts every ten years. Ariz. Const. art. 4, pt. 2, § 1(3). Commissioners are nominated by the Commission on Appellate Court Appointments. Id. § 1(4)-(5). The first four appointments are made by the highest ranking officers and minority party leaders of the Arizona House of Representatives and Senate. Id. § 1(6). Those four commissioners then select a chairperson, the fifth commissioner, from a pool of nominees not registered with any party already represented on the IRC. Id. § 1(8).

¶ 3 The four partisan appointees on the present IRC are Republicans Scott Freeman and Richard Stertz and Democrats Jose Herrera and Linda McNulty. In early 2011, they unanimously selected Colleen Mathis, a registered Independent, as the Chairperson. The IRC then began holding meetings aimed at accomplishing its core function—to prepare draft maps for Arizona's congressional and legislative districts, obtain public comment, adjust and finalize the maps, and submit final maps to the United States Department of Justice for approval. Ariz. Const. art. 4, pt. 2, § 1; 42 U.S.C. § 1973c.

¶ 4 In June 2011, the IRC retained a mapping consultant, Strategic Telemetry, after a three-to-two vote in which Mathis, Herrera, and McNulty were in the majority. Several weeks later, the Attorney General's Office began investigating the IRC's compliance with Arizona's open meeting and procurement laws with respect to the Strategic Telemetry contract. The investigation raised questions of first impression regarding the scope of Arizona's statutory open meeting law and its applicability to the IRC, which has a separate constitutionally mandated open meeting requirement. See Ariz. Const. art. 4, pt. 2, § 1(12). Litigation of those issues was pending in superior court when this special action was filed in and decided by this Court.

¶ 5 In October 2011, the IRC approved draft maps for new congressional and legislative districts by a three-to-two vote, with Mathis and the two Democratic Commissioners again in the majority. The IRC then advertised those maps and embarked on statewide meetings to obtain public comment. See Ariz. Const. art. 4, pt. 2, § 1(16).

¶ 6 On Wednesday, October 26, 2011, Governor Janice K. Brewer notified all five Commissioners in writing of allegations that they had committed substantial neglect of duty and gross misconduct in office. Arizona's Constitution permits a governor to remove an IRC commissioner, 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.” Ariz. Const. art. 4, pt. 2, § 1(10). Before removal, a commissioner must be served written notice and given an opportunity to respond. Id.

¶ 7 In her October 26 letter, the Governor raised four issues and listed seven IRC actions that allegedly “contribut[ed] to” cause for removal. ¹ The Governor asked each Commissioner to respond by 8 a.m. on Monday, October 31, 2011. The IRC and the five Commissioners separately responded to the Governor's letter by that deadline.

¶ 8 On November 1, Secretary of State Ken Bennett, in his capacity as Acting Governor while Governor Brewer was out of state,² sent a letter to Commissioner Mathis removing her from the IRC, effective upon concurrence of two-thirds of the Senate. That letter stated in full:

Dear Ms. Mathis:

Thank you for your October 31, 2011 letter, in response to my October 26, 2011 letter, in which you were given written notice of allegations that you have committed substantial neglect of duty and/or gross misconduct in office. The Arizona Constitution is designed to ensure that Arizona's redistricting process is undertaken by commissioners committed to their constitutional duty to apply the provisions of Arizona Constitution, Art. 4, Pt. 2, § 1 in an honest, independent and impartial fashion, and to transact the redistricting process in a way that upholds public confidence in the integrity of the redistricting process. To that end, the Constitution expressly confers on me the authority to remove a commission member when in my judgment, and with the concurrence of two-thirds of the Arizona Senate, there has been substantial neglect of duty, gross misconduct in office, or an inability to discharge the duties of office.

After careful review of your response and the responses of the other commissioners, I have determined that you have 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), including, but not limited to, the failure to consider or determine whether the creation of a competitive district is practicable or does not cause significant detriment to the other goals. The result is a failure to apply the Arizona Constitution's redistricting provisions in an honest, independent and impartial fashion, and a failure to uphold public confidence in the integrity of the redistricting process. In my judgment, the foregoing constitutes substantial neglect of duty or gross misconduct in office.

Accordingly, I hereby remove you as the fifth member of the Arizona Independent Redistricting Commission and as its Chair. This removal will be effective immediately upon concurrence of two-thirds of the Arizona Senate.

Sincerely,

Ken Bennett

Acting Governor

on behalf of

Janice K. Brewer

Governor

¶ 9 Acting Governor Bennett called a special session of the Legislature at 4:45 p.m. on November 1, 2011, to remove Chairperson Mathis from the IRC. Two-thirds of the Senate concurred in the removal, and the Senate adjourned sine die at 6:35 p.m. that day.

¶ 10 Three days later, the IRC petitioned this Court for special action relief, claiming that the Governor exceeded her limited removal authority and that the Governor and Senate violated separation-of-powers principles by usurping powers of the IRC and the judiciary. Mathis moved to intervene as a petitioner. We granted that motion, obtained further briefing from the parties and various amici, and held expedited oral argument.³

II. JURISDICTION

¶ 11 In challenging whether the Governor acted within her “legal authority” in removing Mathis, Petitioners raise a question covered by our special action rules. See Ariz. R.P. Spec. Act. 3(b). Those procedural rules combine the old common law writs into a single form of action, but do not expand the constitutional scope of this Court's original jurisdiction. See id. 1(a); cf. Ingram v. Shumway, 164 Ariz. 514, 516, 794 P.2d 147, 149 (1990) (finding original jurisdiction based on applicable “constitutional provisions,” rather than on special action procedure).

¶ 12 The IRC invoked our subject matter jurisdiction under Article 6, Section 5 of the Arizona Constitution. That provision grants this Court original jurisdiction to issue “mandamus, injunction and other extraordinary writs to state officers” and extends “[s]uch other jurisdiction as may be provided by law.” Ariz. Const. art. 6, § 5(1), (6); see also A.R.S. § 12–2021 (empowering this Court to issue a writ of mandamus “to any person ... to compel the admission of a party to the use and...