A judge on Friday blocked Attorney General Tom Horne from investigating whether members of the Independent Redistricting Commission violated the state's Open Meeting Law.
Maricopa County Superior Court Judge Dean Fink pointed out that Horne's office had provided some early advice to commission members about the requirements of the law. Fink said it would be ethically improper for Horne to come back now to investigate - and possibly prosecute - his agency's former clients.
"For the Attorney General's Office to advise the commissioners, in privileged executive session, of their duties under the Open Meeting Law, then to conduct an official investigation of how well they complied with that advice, can be justly regarded as a changing of sides," Fink wrote. And the judge rejected Horne's argument that he can proceed because the alleged violations occurred after the commission got its own legal counsel.
Fink's ruling affects more than the question of allegations that Colleen Mathis, who chairs the panel, called other members of the panel to line up votes to select a specific consultant ahead of a meeting.
Two commission members, both Republicans, have testified they got such calls. But Mathis, an independent, and the two Democrats have refused to answer any of Horne's questions, which is how the case wound up in court in the first place.
It also could keep Horne from investigating whether those conversations, if they occurred as Horne alleges, amounted to bid rigging, a criminal offense.
Friday's ruling, however, does not make the inquiry go away.
Rather than appeal the decision, Horne has handed the case off to Maricopa County Attorney Bill Montgomery. Horne said the fact that he and Montgomery are both Republicans - and that virtually all the complaints about the commission's work come from politicians of that ilk - is irrelevant.
He said the duty of prosecutors to investigate all wrongdoing transcends politics. And Horne said the inquiry does not concern the lines the commission is drawing for legislative and congressional districts, which is the heart of the complaint by elected Republicans, but with the practices of the commission itself.
But Horne refused to say whether he has consulted with Gov. Jan Brewer, who has criticized the lines that were drawn. She has launched her own probe into exactly the same issues and has given commissioners until 8 a.m. Monday to respond.
Horne said he cannot comment, as the governor is his client. But he said the fact Brewer is asking the same questions is not evidence that the pair are cooperating or even unusual.
"Everything that I do has been made public," Horne said, including the transcripts of his interviews with the two Republican members of the commission. "And the governor has access to everything that the public has access to."
At the heart of the legal fight are the activities of the five-member commission early in the process when they were selecting a firm to help draw the lines for the coming decade for the 30 legislative and nine congressional districts. The panel ultimately selected Strategic Telemetry, a firm with strong Democratic ties that has done work for Barack Obama and John Kerry.
Richard Stertz and Scott Freeman, the two GOP members of the panel, told Horne that they had been called ahead of time by Mathis in a bid to line up votes for that firm.
Horne said there is nothing wrong with Mathis discussing any issue with one other member. But he said that once she called two, even separately, she had contacted a majority of the panel and effectively violated state laws which require all business to be conducted in public.
Mathis has refused to discuss her activities. But the commission's attorneys, aside from challenging Horne's authority to investigate, also contend that the panel is not subject to the Open Meeting Law.
Fink did not address that question in Friday's ruling, meaning it will be up to Montgomery to counter that claim.
Horne said any commissioner who violates the Open Meeting Law can be removed from office by a judge.
But the allegations also have formed at least part of the basis for Brewer's own investigation. She wants all five commissioners to disclose to her what conversations they had about the selection of Strategic Telemetry, including the fact that three of the panel members gave that firm a perfect score on evaluation sheets.
Stertz, in his conversation with Horne's investigators, said such perfect scores would appear to be "intellectually dishonest." Horne, in turn, said it is "unlikely" that would occur among three commissioners "without their having made an agreement in advance."
The Arizona Constitution gives Brewer the power to seek removal of any and all members of the panel for misconduct. That requires consent of two-thirds of the Senate; Republicans control 21 of the 30 seats.
In her letter to commissioners earlier this week - the one demanding a Monday morning response - the governor said that their failure to respond "will be taken as an admission" of wrongdoing.
The commission was created by voters in 2000 as an alternative to the prior process where state lawmakers got to draw legislative and congressional district lines. Proponents of the change said that system resulted in incumbents crafting boundaries to create "safe" districts for themselves.
Commissioners are required to create districts equal in population. They also are mandated, to the extent possible, to protect communities of interest and use geographic and political boundaries.
The law also directs commissioners to create politically competitive districts, but only to the extent that does not undermine the other goals.