Attorneys for Gov. Jan Brewer told the Arizona Supreme Court Monday the justices have no legal right to overturn her decision to oust Colleen Mathis as chair of the Independent Redistricting Commission.
Joe Sciarrotta Jr. and Lisa Hauser pointed out in legal filings that the Arizona Constitution specifically gives Brewer the power to remove any commission member, contingent on getting the consent of two-thirds of the Senate.
“This constitutional commitment to the governor and Senate renders this court incapable of doing anything other than substituting its judgment for that of the governor as to when ‘substantial neglect of duty’ or ‘gross misconduct in office’ have occurred,’’ they wrote, citing the ground Brewer used to fire Mathis. That, the lawyers said, makes it a political questions which “dictates that the judicial branch stand aside,’’ with any decision to intercede being “judicial second-guessing.’’
Whether the justices believe that, however, remains to be seen. The court is set to hear arguments next week on the commission’s contention that Brewer and the Senate exceeded their legal authority.
The more immediate question is whether Mathis can continue to serve in the interim. That would allow her, if necessary, to cast the deciding vote on adopting controversial new maps for the state’s 30 legislative and nine congressional districts.
Brewer has publicly said she believes the lines on the draft maps adopted last month were not drawn in a fair manner. The governor believes replacing Mathis as chair with someone else, who is required, like Mathis, to be independent of either political party, will result in different maps.
All that is why her attorneys told the justices that if they decide to intercede in the dispute -- and believe Mathis should be allowed to remain a voting member in the interim -- they should at least block the commission from giving final approval to any maps.
“Obviously, the concern is that if you allow the chairman to remain, they can vote and adopt maps,’’ said gubernatorial press aide Matthew Benson. “Once those maps are adopted it becomes a magnitude more difficult to get them un-adopted.’’
While Mathis’ status remains undecided, a special screening panel took the first tentative steps Monday toward finding a replacement.
Chief Justice Rebecca Berch, who chairs that panel, told members that once Brewer fired Mathis, the Arizona Constitution provides only a 30-day window to nominate three people to fill the spot of the politically independent chair. The four remaining commissioners -- two named by Democratic lawmakers and two by Republicans -- must select from that list.
Berch said the fact that the commission is challenging Mathis’ firing -- and that Brewer’s decision may be overturned -- is irrelevant.
“It is not ours to judge whether there’s an appropriate vacancy, whether the reason stated (by the governor) are adequate,’’ Berch said. “We assume others will be litigating those matters.’’
Because she chairs the screening panel, Berch will not participate in the Supreme Court hearings on the firing. Retired Justice Michael Ryan will sit with the other four existing justices.
Applications from those who want to replace Mathis are due this coming Tuesday. But there were indications at Monday’s meeting of divisions within the panel of exactly what is and is not important in a nominee.
That issue surrounds the fact that Mathis, in applying last year, never disclosed that her husband, Christopher, was being paid as treasurer of the reelection campaign of Democratic Rep. Nancy Young Wright of Tucson. That fact, discovered later, led to charges that while Mathis was registered as an independent, really was a Democrat.
Michael Rusing, a Tucson attorney who is a member of the screening panel, said it might be appropriate this time around to inquire of applicants about the political activities of their spouses.
“I hate to do that,’’ he said. “But it’s apparent that that seems to be relevant.’’
That brought an angry reaction from screening panel member Charie Wallace, superintendent of the Santa Cruz Valley High School District, who said she and her husband have been registered in different parties.
“My spouse can give to whatever political campaign he wants to,’’ she said.
“And I can, too,’’ Wallace continued. “But I am highly offended, if I was interviewing for a position, and they started asking me about my spouse and his qualifications and his background.’’
Berch said that the activities of spouses may provide some indication of whether an applicant is truly independent of either major party. But the chief justice, a Republican with a Democratic spouse, said she personally will not be making such inquiries.
“I’ve been married for 30-plus years to a person who’s of a different party,’’ she said. “He does his thing, I do my thing.’’
The chief justice said she will not bar panel members from asking applicants about spousal activities. “But I can assure you, we’ll be asking it of all the men, too.’’
Rep. John Kavanagh, R-Fountain Hills, who attended Monday’s hearing, said even that may not be enough. He told panel members they need to dig deeper into the backgrounds of applicants to ferret out people who really are not as politically independent as they claim.
“Some people who are highly partisan register as independents because they don’t want people to know what party they’re in for personal reasons,’’ Kavanagh said. “Others for business reasons don’t put it down (because) they don’t want potential clients to know their background.’’
He said screening panel members need to look for “other signs of partisanship’’ like whether they make campaign contributions about equally to candidates from both parties.
“But if a candidate is independent but for the last 10 years or so gives to Democrats or Republicans, I think you have a partisan hiding in independent clothing,’’ Kavanagh said.
Berch said the constitution requires only that applicants for the independent position not have been registered with either major party for at least three years. But she said the panel’s staff does check out the political contributions made by applicants.
She also pointed out that the applications of anyone who wants the job will be posted on the panel’s web site. Berch said that will give anyone a chance to come forward and testify about information that needs to be made public about would be redistricting commissioners.