The attorney for Colleen Mathis told the state's high court Thursday if it upholds the decision of Gov. Jan Brewer to fire the chairwoman of the Independent Redistricting Commission, it will permanently undermine the whole basis for the panel.
"Without an order of this court reinstating Colleen Mathis to her lawful, rightful position, the Independent Redistricting Commission becomes a joke, a laughable joke, subject to manipulation by the very people the commission was designed to insulate away from," said Tom Zlaket.
But Lisa Hauser, the governor's attorney, urged the court to stay out of the fight and let Brewer's decision stand. Hauser said the Arizona Constitution specifically empowers Brewer to remove any commissioner as long as she can get the consent of two-thirds of the Senate, as she did in this case.
The 2000 constitutional provision that created the commission to draw the lines for the state's 30 legislative and congressional districts does empower the governor to remove any commissioner on the grounds of gross misconduct or substantial neglect of duty. And in her Nov. 1 letter to Mathis firing her, Brewer said she was guilty of both for two reasons: violating the Open Meeting Law and improperly preparing congressional maps.
But Hauser drew raised eyebrows from the justices when she told them that the governor alone gets to decide what constitutes a firing offense, a decision that stands if she can get the consent of two-thirds of the Senate.
Justice Andrew Hurwitz asked Hauser if Brewer could remove a commission member solely because the governor did not like that person's hairstyle. Hauser said she could - and the decision could not be appealed to the court.
In fact, Hauser told the justices they could not second guess the governor's decision even if there were a question of whether the commissioner had committed the offense alleged.
Retired Justice Michael Ryan, sitting in on the arguments, said that seems to run afoul of the whole concept of voters creating an Independent Redistricting Commission.
"How can this commission ever be considered independent if any governor could come in for any reason, and has a compliant Senate? No commission member or commission chair would ever be safe," he said. "How is that commission member ever going to consider him or herself to be independent?"
Hauser said that removing a commissioner does not interfere with the core function of the commission, which is to draw the maps.
That was exactly the point Zlaket, a former Supreme Court justice himself, sought to make to the court.
Zlaket noted that one of the reasons Brewer gave for ousting Mathis was the governor's conclusion that the draft congressional maps do not meet the legal requirement to consider "communities of interest."
He said that means if Brewer gets to fire Mathis and then is unhappy with what a revamped commission crafts, the governor could repeat the process all over again and again until she gets the kind of maps she wants.
"You ought to prevent it from happening again," Zlaket said.
Judge Robert Brutinel said the governor's powers are not absolute. He pointed out that Brewer can remove someone only if she can get the consent of two-thirds of the Senate.
In fact, Brewer admitted she actually wanted to fire not only Mathis, the political independent on the panel, but also the two Democrats. The governor backed off only after she was unable to marshal those votes.
And Melvin McDonald, attorney for the Senate, told the court that is all the check on the governor's power that the constitution provides. He said if initiative crafters wanted the court to be able to second-guess the grounds cited by the governor in removing a commissioner they should have put that in the measure.
The justices are expected to issue a decision within days.
Whatever they decide has implications more immediate and more concrete than the question of the powers of the governor.
If the court overturns Brewer's actions, that allows Mathis to resume her duties chairing the commission. That puts her in the position of casting the necessary third vote on the five-member panel to adopt final legislative and congressional maps - maps that Brewer and Republicans have contended are unfair.